“Ban the Box” laws rank among the most important employment reforms in recent years. They help people with criminal records get a fair shot at jobs. For roughly 70 million Americans with some criminal history, these laws can mean the difference between constant rejection and a chance to prove their worth.
At Nisar Law Group, we help both job seekers using these protections and employers create fair hiring practices. Understanding how these laws vary by location is key to protecting your rights or ensuring your business follows the rules.
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) stop employers from asking about criminal history on initial job applications. They remove the checkbox asking “Have you ever been convicted of a crime?” These laws delay criminal background questions until later in hiring, letting candidates first show their qualifications instead of getting screened out immediately because of their past.
The basic idea is straightforward: give people with records the chance to show their skills before facing the potential stigma of a criminal history. By pushing criminal history questions to later stages, these laws help qualified candidates get fair consideration.
While the core concept stays the same, the specific rules, protections, and enforcement methods vary widely across different locations. This creates a complex mix of regulations that both employers and job seekers must navigate carefully.
National Coverage of Fair Chance Hiring
The Ban the Box movement has spread remarkably across the country. As of 2023:
- 37 states have adopted some form of Ban the Box policy
- Over 150 cities and counties have created local rules
- 15 states apply their laws to private employers (not just government jobs)
- Federal agencies follow fair chance hiring practices under the 2019 Fair Chance Act
This widespread adoption shows major progress. However, the differences in protections mean your rights or obligations depend heavily on where you live or work.
How These Laws Differ Across Regions
Which Employers Must Comply
The range of employers covered by these laws varies dramatically by location. Some states limit their Ban the Box laws to government agencies, while others include businesses working with the state. The most comprehensive laws (in states like California, Colorado, and New Jersey) cover almost all employers, though often with size requirements.
Size requirements are common for private employer coverage:
- California covers employers with 5+ employees
- Maryland applies to employers with 15+ employees
- Illinois covers those with 15+ employees in the state
This variation means a company might need to follow Ban the Box requirements in one location but not in another, even within the same state.
When Background Checks Can Happen
Perhaps the biggest difference is when employers can ask about criminal history. The most basic laws simply ban criminal history questions on the application but allow asking during the first interview. Some places (like Minnesota) make employers wait until after an initial interview. The strongest laws (such as in Hawaii, California, and New York City) prohibit questions until after a conditional job offer.
This timing element matters greatly. It determines how far a candidate with a record can progress before facing potential discrimination. Laws that delay questions until after a conditional offer give candidates the best chance to prove their qualifications first.
Required Assessment Process
Some places go beyond just delaying questions to require meaningful review of criminal history. Basic laws simply postpone when questions can happen without regulating how that information gets used. Middle-ground laws suggest factors employers should consider. Comprehensive laws require documented case-by-case assessments using specific factors.
The strongest laws, like California’s Fair Chance Act, require employers to assess:
- The nature and seriousness of the offense
- How much time has passed since the offense
- The nature of the job sought
- Evidence of rehabilitation or other positive changes
These assessment requirements turn simple compliance into meaningful consideration of candidates with records.
Applicant Rights to Respond
Another key difference concerns what happens when an employer finds concerning criminal history. Basic laws don’t require notifying candidates about potentially disqualifying information. Middle-ground laws might require general notices about negative decisions. Comprehensive laws require specific, written notice with time to respond.
For example, Los Angeles 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
- Consider any additional information provided before making a final decision
These notice requirements give candidates crucial opportunities to correct mistakes, provide context, or show rehabilitation.
Off-Limits Records
Locations also differ in what types of criminal history employers can’t consider. Many places (including California, Massachusetts, and New York) specifically prohibit employers from considering arrests that didn’t lead to conviction. Most comprehensive laws ban consideration of sealed or expunged records. Some places limit how far back employers can look (e.g., seven years in Massachusetts for certain positions). Some laws prohibit considering minor offenses or misdemeanors after a certain period.
These prohibitions stop employers from making decisions based on legally irrelevant or outdated information that doesn’t meaningfully relate to current job qualifications.
Consequences for Violations
Enforcement methods and penalties for violations vary widely. 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. Fines range from a few hundred dollars to $10,000 or more per violation. Some places can order policy changes or specific remedies.
For example, New York City’s Fair Chance Act allows penalties up to $250,000 for intentional violations, while other places may cap penalties at much lower amounts.
Major State Laws Worth Knowing
California’s Approach
California’s law applies to employers with five or more employees and bans questions 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. It includes exceptions for positions where background checks are legally required and carries penalties up to $10,000 per violation.
California’s approach ranks among the most comprehensive, creating strong procedural protections while recognizing legitimate safety concerns for certain jobs.
New York’s Protections
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, prohibits questions until after a conditional offer, and requires 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 aren’t relevant. It includes strong enforcement with substantial penalties.
New York’s approach stands out for requiring employers to document their consideration of each specific factor, creating accountability in decision-making.
Illinois’ Framework
Illinois provides middle-ground protections with some unique features. It covers employers with 15 or more employees, prohibits questions until after interview selection or conditional offer, and creates exceptions for positions with legal restrictions. The law is enforced through the Department of Labor with increasing penalties for repeated violations.
Illinois represents a balanced approach that delays background questions without imposing the rigorous procedural requirements found in states like California and New York.
Massachusetts’ Time Limits
Massachusetts created a distinctive approach focusing heavily on time limits. It prohibits questions about criminal history on initial applications, explicitly bans questions about arrests not resulting in conviction, and limits felony inquiries to the past 7 years and misdemeanors to past 3 years. The law requires employers to provide copies of criminal history information and protects employers from negligent hiring claims when they follow the law.
Massachusetts’ time-limited approach creates clear boundaries around what historical information remains relevant for employment decisions.
Powerful City Ordinances
Some of the strongest and most innovative protections exist at the local level:
Philadelphia’s Standards
Philadelphia’s ordinance contains particularly strong provisions. It covers businesses with one or more employees in Philadelphia, prohibits questions until after conditional offer, and requires individualized assessment. The ordinance creates a legal presumption that arrests not leading to conviction aren’t job-related, sets a 7-year time limit for considering criminal history, and allows both administrative and private enforcement.
Philadelphia’s ordinance stands out for its broad coverage (essentially all employers) and its presumption standard that shifts the burden toward employers.
Los Angeles’ Requirements
Los Angeles combines strong procedural requirements with robust remedies. It covers private employers with 10+ employees, prohibits questions until after a conditional offer, and requires written individualized assessment. The ordinance mandates a 5-day fair chance process for applicant response, allows private lawsuits with potential attorney’s fees, and implements progressive penalties starting at $500 per violation.
Los Angeles’ comprehensive approach creates meaningful procedural protections while balancing the needs of smaller businesses through its size requirements.
San Francisco’s Innovations
San Francisco pioneered many strong provisions later adopted elsewhere. It covers employers with 5+ employees, prohibits questions until after live interview or conditional offer, and requires consideration of rehabilitation evidence. The ordinance creates strong anti-retaliation protections, requires specific posting and notice requirements, and is enforced by the Office of Labor Standards Enforcement.
San Francisco’s ordinance focuses particularly on rehabilitation evidence and anti-retaliation protections that help ensure candidates can assert their rights without fear.
Federal Developments
While no comprehensive federal Ban the Box law applies to private employers, important federal initiatives include:
Federal Jobs Act
The Fair Chance to Compete for Jobs Act of 2019, which took effect in December 2021, prohibits federal agencies from requesting criminal history from job applicants until after a conditional offer. It extends the same requirement to federal contractors, with exceptions for sensitive positions and jobs legally requiring background checks.
While limited to federal employment contexts, this law established important federal recognition of fair chance principles.
EEOC Guidelines
The Equal Employment Opportunity Commission’s 2012 Guidance on criminal 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, creates a framework for determining business necessity, and sets expectations for proper consideration of criminal history.
These guidelines provide important federal standards even in places without specific Ban the Box laws, as Title VII applies nationwide to employers with 15 or more employees.
Multi-State Employer Challenges
Employers operating across multiple locations face special challenges navigating this patchwork of regulations.
Multi-state employers typically must either create location-specific hiring processes or implement a single policy that complies with the strictest applicable requirements. Many nationwide employers choose the more protective approach across all operations for consistency.
Even with standardized policies, practical challenges include:
- Training hiring managers across different locations
- Coordinating with background check providers
- Maintaining proper documentation
- Tracking changing requirements
- Managing potentially different timelines for different positions
These practical complexities highlight the importance of systematic approaches to fair chance hiring.
Smart Practices for Employers
Regardless of specific legal requirements, these practices promote fair evaluation while reducing legal risk:
- Remove criminal history questions from all applications
- Delay background checks until late in the hiring process, ideally after a conditional offer
- Develop standard criteria for evaluating the relevance of criminal history
- Document individualized assessments explaining how specific convictions relate to specific job duties
- 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 hiring personnel on proper procedures
- Conduct regular compliance checks
- Document all hiring decisions thoroughly
These practices not only reduce legal risk but typically lead to better hiring outcomes by ensuring candidates are evaluated on their current qualifications.
Tips for Job Seekers with Records
If you’re seeking employment with a criminal record, understanding your rights under applicable Ban the Box laws is crucial.
Know Your Local Protections
Research the specific protections in your location to understand:
- When employers can legally ask about criminal history
- What types of records employers can’t consider
- What procedures employers must follow
- Where and how to file complaints if your rights are violated
This knowledge helps you prepare appropriate responses and recognize potential violations.
Prepare Your Background Information
Even with strong Ban the Box protections, most employers will eventually conduct background checks. Prepare by:
- Getting your own background check to know what employers will see
- Developing a brief explanation of past offenses that shows responsibility and rehabilitation
- Gathering documentation of rehabilitation efforts and achievements
- Preparing reference letters from employers or community leaders who can speak to your character
Time Your Disclosure Carefully
Strategic disclosure involves:
- Determining when disclosure is legally required versus premature
- Framing your disclosure in terms of lessons learned and growth
- Providing supporting information showing rehabilitation
- Redirecting focus to your qualifications and potential contributions
In places with strong Ban the Box laws, you generally should not disclose criminal history until specifically asked at the legally appropriate stage.
Document Everything
Throughout the hiring process, keep records of:
- All communications with potential employers
- When criminal history questions occurred
- Explanations provided for adverse decisions
- Whether proper notice and opportunity to respond were provided
This documentation proves crucial if you need to file a complaint.
When to Seek Legal Help
Consider consulting with an employment attorney if:
- An employer asks about criminal history earlier than legally allowed
- You’re rejected based on criminal history without proper notice or assessment
- An employer appears to use blanket policies against hiring people with records
- The criminal history being considered is prohibited under local laws
Many legal aid organizations offer free help with Ban the Box violations, or an attorney might help on a contingency basis for clear violations.
The Future of Fair Chance Hiring
Ban the Box laws continue to evolve rapidly, with new places adopting protections and existing laws getting stronger. This momentum reflects growing recognition that fair chance hiring benefits:
- Individuals seeking to rebuild their lives through employment
- Employers who gain access to more talent
- Communities that see less repeat offending and more economic stability
- The broader economy through workforce participation
The most effective laws go beyond simply removing the checkbox to create meaningful procedural protections. When properly implemented, these laws don’t force employers to hire unqualified candidates—they simply ensure qualified candidates with criminal histories receive fair consideration based on their current qualifications rather than past mistakes.
At Nisar Law Group, we regularly help both job seekers and employers navigate 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 creating compliant hiring practices, contact us for a consultation about your specific situation.
The journey toward truly fair consideration remains ongoing, 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.
