“Ban the Box” laws represent one of the most significant employment law reforms of the past decade, designed to give people with criminal records a fair chance at employment. For the estimated 70 million Americans with some form of criminal history, these laws can make the difference between continued rejection and the opportunity to be evaluated on their qualifications and potential.
At Nisar Law Group, we regularly assist both job seekers navigating these protections and employers implementing compliant hiring practices. Understanding how these laws vary across jurisdictions is essential for effectively protecting your rights or ensuring your business’s compliance.
Disclaimer: This article provides general information for informational purposes only and should not be considered a substitute for legal advice. It is essential to consult with an experienced employment lawyer at our law firm to discuss the specific facts of your case and understand your legal rights and options. This information does not create an attorney-client relationship.
What Are Ban the Box Laws?
Ban the Box laws (also called Fair Chance laws) prohibit employers from asking about criminal history on initial job applications, removing the checkbox that asks “Have you ever been convicted of a crime?” These laws aim to delay criminal background inquiries until later in the hiring process, allowing candidates to be assessed first on their qualifications rather than automatically screened out based on criminal history.
The core principle is simple: give people with records the chance to demonstrate their qualifications before facing the potential stigma of a criminal history. By postponing criminal history inquiries, these laws help ensure that qualified candidates aren’t automatically eliminated before they can make their case.
While the basic concept remains consistent, the specific requirements, protections, and enforcement mechanisms vary significantly across jurisdictions, creating a complex patchwork of regulations that employers and job seekers must navigate.
The Current Landscape: Coverage Across the Country
The Ban the Box movement has gained remarkable traction nationwide. As of 2023:
- 37 states have adopted some form of Ban the Box or fair chance hiring policies
- Over 150 cities and counties have implemented local ordinances
- 15 states apply their laws to private employers (not just public employment)
- Federal agencies follow fair chance hiring practices under the Fair Chance to Compete for Jobs Act of 2019
This widespread adoption represents significant progress, but the variation in protections means your rights or obligations depend heavily on your location.
Key Variations in Ban the Box Laws
1. Covered Employers
The scope of employers covered by these laws varies dramatically across jurisdictions. Some states limit their Ban the Box laws to state government agencies or public employers, while others extend requirements to vendors doing business with the state. The most comprehensive laws (in states like California, Colorado, and New Jersey) cover virtually all employers, though often with size thresholds.
Size thresholds are common for private employer coverage. California covers employers with 5+ employees, Maryland applies to employers with 15+ employees, and Illinois covers those with 15+ employees within the state.
This variation means that a company might be covered by Ban the Box requirements in one location but not in another, even within the same state in some cases.
2. Timing of Background Checks
Perhaps the most significant variation is when in the hiring process employers can inquire about criminal history. The most basic laws simply prohibit criminal history questions on the application itself but allow inquiries during the first interview. Some jurisdictions (like Minnesota) require employers to wait until after an initial interview before asking about convictions. The strongest laws (such as in Hawaii, California, and New York City) prohibit inquiries until after a conditional offer of employment has been made.
This timing element is crucial because it determines how far a candidate with a record can progress before facing potential discrimination. Laws that delay inquiry until after a conditional offer provide the strongest protection, giving candidates the fullest opportunity to demonstrate their qualifications.
3. Individualized Assessment Requirements
Some jurisdictions go beyond merely delaying inquiries to require employers to conduct meaningful assessments of criminal history. Basic laws simply postpone when inquiries can occur without regulating how that information is used. Intermediate laws provide factors that employers should consider but don’t mandate specific processes. Comprehensive laws require documented individualized assessments considering specific factors.
The strongest laws, like California’s Fair Chance Act, require employers to assess:
- The nature and gravity of the offense
- The time elapsed since the offense
- The nature of the job sought
- Evidence of rehabilitation or mitigating circumstances
These assessment requirements can transform superficial compliance into meaningful consideration of candidates with records.
4. Notice and Opportunity to Respond
Another significant variation concerns what happens when an employer discovers concerning criminal history. Basic laws have no specific requirements for notifying candidates about potentially disqualifying information. Intermediate laws might require general notices about adverse decisions. Comprehensive laws require specific, written notice with an opportunity to respond.
For example, Los Angeles’s Fair Chance Initiative requires employers to provide written notification identifying the specific convictions of concern, include a copy of the background check report, allow five business days for the applicant to respond, and consider any additional information provided before making a final decision.
These notice requirements provide crucial opportunity for candidates to correct inaccurate information, provide context, or demonstrate rehabilitation.
5. Prohibited Considerations
Jurisdictions also vary in what types of criminal history employers are prohibited from considering. Many jurisdictions (including California, Massachusetts, and New York) explicitly prohibit employers from considering arrests that didn’t result in conviction. Most comprehensive laws prohibit consideration of legally sealed or expunged records. Some jurisdictions limit how far back employers can look (e.g., seven years in Massachusetts for certain positions). Some laws prohibit consideration of minor infractions or misdemeanors after a certain period.
These prohibitions prevent employers from making decisions based on legally irrelevant or outdated information that doesn’t meaningfully relate to current job qualifications.
6. Penalties and Enforcement
Enforcement mechanisms and penalties for violations vary substantially. Many laws are enforced through state labor departments or civil rights agencies. Some laws (like New York City’s) allow individuals to sue employers directly for violations. Fines range from a few hundred dollars to $10,000 or more per violation. Some jurisdictions can order policy changes or specific remedies.
For example, New York City’s Fair Chance Act provides for penalties up to $250,000 for willful violations, while other jurisdictions may cap penalties at much lower amounts.
Notable State Laws: A Closer Look
Let’s examine some of the strongest and most distinctive state-level protections:
California Fair Chance Act
California’s law applies to employers with five or more employees and prohibits inquiries until after a conditional job offer. The law requires individualized assessment using specific factors, written notification with specific reasons for preliminary denial, and five business days for applicants to respond with additional information. It includes exemptions for positions where background checks are legally required and is enforced through the Department of Fair Employment and Housing with penalties of up to $10,000 per violation.
California’s approach is among the most comprehensive, establishing strong procedural protections while recognizing legitimate safety concerns for certain positions.
New York Article 23-A and Fair Chance Act
New York combines state law (Article 23-A of the Correction Law) with the NYC Fair Chance Act to create strong protections. The law requires consideration of seven specific factors (the “Article 23-A factors”), prohibits inquiries until after conditional offer, and mandates written analysis explaining how each factor was considered. The NYC law creates a presumption that felonies older than 10 years and misdemeanors older than 5 years are irrelevant. It includes strong enforcement mechanisms with substantial penalties and directly states that rehabilitation can overcome presumption against employment.
New York’s approach is particularly notable for requiring employers to document their consideration of each specific factor, creating accountability and transparency in decision-making.
Illinois Job Opportunities for Qualified Applicants Act
Illinois provides intermediate protections with some unique features. It covers employers with 15 or more employees, prohibits inquiries until after interview selection or conditional offer, and creates exemptions for specific positions with legal restrictions. The law is enforced through the Department of Labor with progressive penalties, allows consideration of “disqualification time frames” from other laws, but does not require specific individualized assessment documentation.
Illinois represents a middle-ground approach that delays inquiries without imposing the rigorous procedural requirements found in states like California and New York.
Massachusetts CORI Reform
Massachusetts created a distinctive approach focusing heavily on record access. It prohibits inquiries about criminal history on initial application, explicitly prohibits questions about arrests not resulting in conviction, and limits felony inquiries to past 7 years and misdemeanors to past 3 years. The law requires employers to provide copies of criminal history information, creates a standardized process for accessing Criminal Offender Record Information (CORI), and provides protections against negligent hiring claims for employers who follow the law.
Massachusetts’s time-limited approach is notable for creating clear boundaries around what historical information remains relevant for employment decisions.
Significant Local Ordinances
Some of the strongest and most innovative protections exist at the local level:
Philadelphia Fair Criminal Record Screening Standards
Philadelphia’s ordinance contains particularly strong provisions. It covers businesses with one or more employees in Philadelphia, prohibits inquiries until after conditional offer, and requires individualized assessment using specific factors. The ordinance creates a rebuttable presumption that arrests not leading to conviction aren’t job-related, sets a 7-year look-back limitation for considering criminal history, and provides for both administrative and private enforcement.
The Philadelphia ordinance is notable for its broad coverage (essentially all employers) and its rebuttable presumption standard that shifts the burden toward employers.
Los Angeles Fair Chance Initiative for Hiring
Los Angeles combines strong procedural requirements with robust remedies. It covers private employers with 10+ employees, prohibits inquiries until conditional offer is made, and requires written individualized assessment. The ordinance mandates a 5-day fair chance process for applicant response, creates a private right of action with potential for attorney’s fees, and implements progressive penalties starting at $500 per violation.
Los Angeles’s comprehensive approach creates meaningful procedural protections while balancing needs of smaller businesses through its threshold requirements.
San Francisco Fair Chance Ordinance
San Francisco pioneered many strong provisions later adopted elsewhere. It covers employers with 5+ employees, prohibits inquiries until after live interview or conditional offer, and requires consideration of evidence of rehabilitation. The ordinance creates strong anti-retaliation provisions, mandates specific posting and notice requirements, and is enforced by the Office of Labor Standards Enforcement.
San Francisco’s ordinance is particularly notable for its strong focus on rehabilitation evidence and anti-retaliation protections that help ensure candidates can assert their rights without fear.
Federal Initiatives
While no comprehensive federal Ban the Box law applies to private employers, important federal initiatives include:
Fair Chance to Compete for Jobs Act of 2019
This law, which took effect in December 2021, prohibits federal agencies from requesting criminal history information from job applicants until after a conditional offer and extends the same requirement to federal contractors. It creates exceptions for sensitive positions and positions legally requiring background checks and directs the Office of Personnel Management to issue implementing regulations.
While limited to federal employment contexts, this law established important federal recognition of fair chance principles.
EEOC Guidance on Background Checks
The Equal Employment Opportunity Commission’s 2012 Guidance on the Consideration of Arrest and Conviction Records continues to shape employer practices nationwide. It establishes that blanket bans based on criminal history may violate Title VII due to disparate impact, recommends individualized assessments using specific factors, creates a framework for determining business necessity, and sets expectations for proper consideration of criminal history.
This guidance provides important federal standards even in jurisdictions without specific Ban the Box laws, as Title VII applies nationwide to employers with 15 or more employees.
Compliance Challenges for Multi-Jurisdiction Employers
Employers operating across multiple jurisdictions face particular challenges in navigating this patchwork of regulations.
Multi-state employers typically must either create jurisdiction-specific hiring processes tailored to each location’s requirements or implement a single policy that complies with the most stringent applicable requirements. Many nationwide employers choose to adopt the more protective approach across all operations for consistency and simplicity.
Even with standardized policies, practical implementation challenges include training hiring managers across different locations on varying requirements, coordinating with background check providers to ensure timely and compliant processes, maintaining proper documentation of assessments and decisions, tracking changing requirements across multiple jurisdictions, and managing potentially different timelines for different positions.
These logistical complexities underscore the importance of systematic approaches to fair chance hiring.
Best Practices for Employers
Regardless of specific legal requirements, these best practices promote fair evaluation while minimizing legal risk:
- Remove criminal history questions from all applications, even if not legally required in all locations
- Delay background checks until as late in the hiring process as practical, ideally after a conditional offer
- Develop standardized assessment criteria for evaluating relevance of criminal history
- Document individualized assessments explaining how specific convictions relate to specific job requirements
- Provide written notice when criminal history may disqualify a candidate
- Allow reasonable time for candidates to respond (typically 5-10 business days)
- Consider evidence of rehabilitation
- Train all personnel involved in hiring on proper procedures and non-discrimination principles
- Conduct regular compliance audits to ensure processes meet current legal requirements
- Document all hiring decisions with sufficient detail to demonstrate proper consideration
These practices not only reduce legal risk but typically lead to better hiring outcomes by ensuring candidates are evaluated on their current qualifications and potential.
Strategies for Job Seekers with Criminal Records
If you’re seeking employment with a criminal record, understanding your rights under applicable Ban the Box laws is crucial.
Research the specific protections in your location to understand when employers can legally inquire about criminal history, what types of records employers are prohibited from considering, what procedures employers must follow when evaluating criminal history, and where and how to file complaints if your rights are violated. This knowledge helps you prepare appropriate responses and recognize potential violations of your rights.
Even with strong Ban the Box protections, most employers will eventually conduct background checks. Prepare by obtaining your own background check to know what employers will see, developing a brief, straightforward explanation of past offenses that takes responsibility while emphasizing rehabilitation, gathering documentation of rehabilitation efforts, educational achievements, and positive employment history, and preparing reference letters from employers, teachers, or community leaders who can speak to your character and reliability.
Strategic disclosure involves determining when disclosure is legally required versus premature, how to frame disclosure in terms of lessons learned and personal growth, what supporting information to provide demonstrating rehabilitation, and how to redirect focus to your qualifications and potential contributions. In jurisdictions with strong Ban the Box laws, you generally should not disclose criminal history until specifically asked at the legally appropriate stage of the hiring process.
Throughout the hiring process, maintain records of all communications with potential employers, timing of any criminal history inquiries, explanations provided for adverse decisions, and whether proper notice and opportunity to respond were provided. This documentation can be crucial if you need to file a complaint about potential violations.
Consider consulting with an employment attorney if an employer asks about criminal history earlier than legally permitted, you’re rejected based on criminal history without proper notice or assessment, you believe an employer is applying blanket policies against hiring people with records, or the criminal history being considered is prohibited under local laws (like old offenses or arrests without conviction). Many legal aid organizations offer free assistance with Ban the Box violations, or an attorney may be able to help on a contingency basis if clear violations exist.
Conclusion: The Evolving Landscape of Fair Chance Hiring
Ban the Box laws continue to evolve rapidly, with new jurisdictions adopting protections and existing laws being strengthened. This momentum reflects growing recognition that fair chance hiring benefits individuals seeking to rebuild their lives through employment, employers who gain access to a broader talent pool, communities that see reduced recidivism and increased economic stability, and the broader economy through workforce participation and reduced public assistance needs.
The most effective laws go beyond merely removing the checkbox to create meaningful procedural protections and assessment requirements. When properly implemented, these laws don’t force employers to hire unqualified candidates—they simply ensure that qualified candidates with criminal histories receive fair consideration based on their current qualifications rather than past mistakes.
At Nisar Law Group, we regularly assist both job seekers and employers in navigating this complex landscape. If you believe your rights under Ban the Box laws have been violated, or if you’re an employer seeking guidance on developing compliant hiring practices, contact us for a consultation to discuss your specific situation.
The path toward truly fair consideration remains a work in progress, but Ban the Box laws represent a significant step toward employment practices that both protect public safety and provide second chances for those who have earned them.
