Ban the Box

Ban the Box laws contain exemptions for roles where criminal-history inquiry is required by law or where the public-safety interest justifies pre-offer disclosure:.

Ban the Box is a category of US employment laws that restrict when and how employers can inquire about a job applicant’s criminal history during the hiring process. As of 2026, 37 US states and 150+ cities have enacted these laws. Also called: Fair Chance hiring, Fair Chance laws, criminal history inquiry restriction.

What ban the box actually requires

Ban the Box laws share a common structural pattern, though specifics vary by jurisdiction. The standard requirements:

• Remove the conviction-history checkbox from the initial application. The question “Have you ever been convicted of a crime?” cannot appear on the initial application form.
• Delay criminal-history inquiries. Most laws permit the inquiry only after a specific milestone – typically the initial interview, the second interview, or (in the strictest jurisdictions) after a conditional offer of employment.
• Conduct an individualized assessment. If a criminal record is uncovered, the employer must weigh the nature of the offense, the time elapsed since conviction or release, and the relationship between the offense and the duties of the role before withdrawing an offer.
• Provide pre-adverse and adverse action notices. If the decision is to rescind based on the record, the employer must notify the candidate, provide a copy of the report, and allow time for the candidate to respond or dispute.
• Document the decision. The individualized assessment and rationale must be retained for audit and litigation defense.

The strictest US jurisdiction is currently California, where the Fair Chance Act (Government Code Section 12952) prohibits employers with five or more employees from asking about conviction history before extending a conditional offer. After offer, the law requires a written individualized assessment, a copy of any criminal-record report shared with the candidate, and a minimum five-business-day window for the candidate to respond before final adverse action.

State-by-state coverage

Ban the Box laws differ in scope (public-employer only vs. private-employer too), timing (when the inquiry is permitted), and procedural requirements. A summary of major private-employer jurisdictions:

Jurisdiction layering matters. An employer with operations in California, NYC, Illinois, and Colorado must comply with the strictest applicable rule in each market. Maintaining a single national application form that removes the conviction-history question everywhere is the safest design.

The federal fair chance act and federal contractor rules

The Fair Chance to Compete for Jobs Act of 2019 (FCA) took effect in December 2021. It prohibits federal agencies and federal contractors from inquiring about an applicant’s criminal history until a conditional offer has been extended. The law applies to executive-branch civil service positions and to federal contractor positions performing work on or in connection with a federal contract.

Exceptions are narrowly defined: positions in law enforcement, national security, and positions for which access to criminal history is required by another federal law. Federal contractors subject to the FCA must update their application forms and training across all locations performing federal work, even in states without a parallel state law.

Compliance documentation is essential for federal contractors. The Department of Labor and the EEOC both have enforcement authority, and contracting officers may flag non-compliant application forms during contract awards.

Ban the box and EEOC disparate impact

Ban the Box laws operate alongside the EEOC’s 2012 guidance on the use of arrest and conviction records in employment decisions. The EEOC guidance does not prohibit criminal-record inquiry itself, but it establishes that blanket exclusions of all candidates with any criminal record carry disparate-impact risk under Title VII of the Civil Rights Act because of documented racial disparities in US criminal-justice data.

The EEOC guidance requires an individualized assessment considering three factors: the nature and gravity of the offense, the time elapsed since conviction or completion of sentence, and the nature of the job sought. Ban the Box laws operationalize this guidance by deferring the inquiry until the employer has assessed the candidate on qualifications and is in a position to perform the individualized assessment meaningfully.

The practical implication for HR: even in states without a Ban the Box statute, the EEOC framework imposes substantively similar requirements on the use of criminal-record information. National employers typically design a single Ban the Box-compliant workflow rather than a state-by-state patchwork.

Industries exempt from ban the box

Ban the Box laws contain exemptions for roles where criminal-history inquiry is required by law or where the public-safety interest justifies pre-offer disclosure:

• Law enforcement and corrections. Police officers, corrections officers, and related public-safety roles are typically exempt under state Ban the Box laws.
• Childcare, schools, and youth-serving organizations. Background checks including criminal history are often required by state law and are exempt from Ban the Box delay rules.
• Healthcare positions with patient access. Long-term care, home health, and other roles with vulnerable-population access typically have specific statutory background-check requirements.
• Banking and financial services. Federal law requires criminal-history screening for certain banking positions; the FDIC Section 19 statute applies regardless of state Ban the Box rules.
• Federal positions requiring security clearance. National security and clearance-required roles operate under separate frameworks.
• Transportation positions with DOT requirements. Commercial drivers and certain airline positions have federal pre-employment background requirements.

Exempt does not mean unrestricted. Even exempt employers must comply with FCRA pre-adverse and adverse action procedures when third-party background reports are used. See background screening for the broader FCRA framework.

How to build a ban the box compliant hiring workflow

A national employer can operate a single Ban the Box compliant workflow that satisfies the strictest applicable jurisdiction:

• Audit current application forms. Remove any conviction-history question, arrest-history question, or general “have you ever been involved in the criminal justice system” language from initial application forms in all jurisdictions.
• Reconfigure the ATS. Greenhouse, Workday Recruiting, iCIMS, and Lever all support conditional question rules. Configure criminal-history questions to appear only after a defined stage.
• Defer the background check trigger. Move the third-party background check from application stage to post-conditional-offer. This both complies with Ban the Box and reduces wasted screening spend on candidates who would not have been offered anyway.
• Train recruiters and hiring managers. Verbal questions in interviews about criminal history are equivalent to written questions on the application for compliance purposes. Recruiter training must address informal channels.
• Build the individualized assessment workflow. When a criminal record surfaces post-offer, the assessment must be documented in writing. Templates aligned to the EEOC three-factor framework and any state-specific requirements are standard.
• Document the adverse-action sequence. Pre-adverse notice, dispute window, final adverse notice – all standard FCRA requirements that apply on top of Ban the Box.

Pair Ban the Box compliance with job-related skills testing. Validated assessments provide EEOC-compliant selection criteria that satisfy job relatedness requirements regardless of how criminal history is later handled. See also background verification for the India-specific context.

Frequently asked questions