Ban the Box and fair chance hiring laws: the federal Fair Chance to Compete for Jobs Act, the 37+ state laws, how delayed inquiry rules work, and what employers and applicants need to know

The checkbox on a job application that asks "Have you ever been convicted of a crime?" has historically eliminated candidates before the employer ever reviews their qualifications. The applicant checks "yes," and the application goes into the rejection pile without consideration of the person's skills, experience, or the nature and age of the conviction.

Ban the Box laws address this by removing the criminal history question from the initial application and delaying the inquiry to a later stage of the hiring process, typically after the employer has evaluated the candidate's qualifications and, in the strongest versions, after a conditional job offer has been made.

The premise is simple: a person with a criminal record should be evaluated on their qualifications first. The criminal history can be considered, but it should be considered in context (the nature of the offense, its relevance to the job, the time elapsed) rather than used as a blanket disqualifier at the front door.

Ban the Box operates alongside, and as a complement to, the expungement and Clean Slate frameworks. Expungement removes the record; Ban the Box protects the applicant during the hiring process even when the record has not been (or cannot be) removed.

The federal law: Fair Chance to Compete for Jobs Act

The Fair Chance to Compete for Jobs Act of 2019 (also called the Fair Chance Act), enacted as part of the National Defense Authorization Act, applies to federal agencies and federal contractors. The law:

Prohibits federal agencies and federal contractors from requesting criminal history information from applicants before a conditional offer of employment is made.

Establishes a complaint and adjudication process through the Office of Personnel Management (OPM) for applicants who believe their rights were violated.

Includes exceptions for positions requiring security clearances, for law enforcement positions, and for positions where a criminal history inquiry is required by law.

Took effect December 20, 2021.

The federal Fair Chance Act is limited in scope (federal agencies and contractors only, not private employers generally), but it established the federal policy direction and influenced the rapid expansion of state and local laws.

The state and local landscape

As of 2026, more than 37 states and 150 cities and counties have enacted some form of Ban the Box or fair chance hiring legislation. The scope and strength vary substantially:

Public-employer-only states. Some states apply Ban the Box only to state and local government employers, leaving private employers free to ask about criminal history at any stage. These states provide meaningful protection for public-sector applicants but leave the private sector unregulated.

Public-and-private-employer states. The strongest Ban the Box laws apply to both public and private employers. States in this category include California, Connecticut, Colorado, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington, among others. These states provide the broadest protection by regulating the entire labor market.

Conditional-offer states. The strongest iteration delays the criminal history inquiry until after a conditional job offer has been made. This means the employer has already decided (based on qualifications alone) that the candidate is the preferred hire, and the criminal history is considered only as a potential reason to withdraw the conditional offer. The conditional-offer timing is the most protective because it forces the employer to confront a specific candidate's criminal history in the context of an actual hiring decision, rather than screening out an abstract application.

Application-removal-only states. Some states remove the checkbox from the application but allow the employer to ask about criminal history during the interview or at any point after the initial application. These are weaker protections; they delay the inquiry but allow it before a conditional offer.

How the delayed inquiry works in practice

In a jurisdiction with a strong Ban the Box law (conditional-offer timing, private employers included):

Step 1: Application. The employer's application does not include a criminal history question. The applicant is evaluated solely on their qualifications, experience, and interview performance.

Step 2: Conditional offer. If the employer selects the candidate, a conditional offer of employment is extended. The offer is contingent on the successful completion of the background check and any other pre-employment conditions.

Step 3: Background check. After the conditional offer, the employer runs a criminal background check. If the check reveals a conviction, the employer must conduct an individualized assessment before withdrawing the offer.

Step 4: Individualized assessment. The employer considers the nature and gravity of the offense, the time elapsed since the offense or sentence completion, the nature of the job sought (relevance of the offense to the job duties), and any evidence of rehabilitation. This assessment is required by EEOC guidance and by many state Ban the Box laws. A blanket policy of "no convictions" is generally not permitted; the assessment must be individualized.

Step 5: Adverse action notice. If the employer decides to withdraw the conditional offer based on the criminal history, many jurisdictions require a pre-adverse-action notice (informing the candidate that the employer intends to withdraw the offer based on the background check), a copy of the background check report, and an opportunity for the candidate to respond (typically 5-10 business days) before the final adverse action is taken. This tracks the process under the Fair Credit Reporting Act (FCRA), which governs the use of consumer reports (including background checks) in employment decisions.

The EEOC enforcement guidance

Even in jurisdictions without a Ban the Box law, the EEOC's 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records establishes a federal baseline. The EEOC's position:

Arrest records (without conviction) should generally not be used as the basis for employment decisions, because an arrest does not establish that the conduct occurred.

Conviction records can be considered, but a blanket exclusion (no applicants with any conviction) constitutes disparate impact discrimination under Title VII because of the disproportionate impact on Black and Hispanic applicants. The employer must conduct an individualized assessment considering the nature of the offense, the time elapsed, and the relevance to the job.

The EEOC guidance applies to all employers with 15 or more employees (the Title VII threshold) regardless of whether the jurisdiction has a Ban the Box law. An employer in a state without a Ban the Box statute can still face a Title VII disparate impact claim if it uses criminal history as a blanket disqualifier.

What Ban the Box does not do

Ban the Box laws delay the inquiry; they do not prohibit it. After the appropriate point in the hiring process (typically the conditional offer), the employer can and often does conduct a criminal background check and consider the results. The law does not require the employer to hire a person with a criminal record; it requires the employer to consider the person's qualifications before considering the criminal history, and to conduct an individualized assessment rather than applying a blanket ban.

Ban the Box also does not seal or expunge the record. The criminal history still appears on the background check. The law changes the timing and the process for considering it, not its existence. This is why Ban the Box and expungement are complementary tools: expungement removes the record from the background check; Ban the Box protects the applicant during the hiring process when the record is still visible.

For positions with legal requirements for criminal history checks (law enforcement, childcare, healthcare, financial services, security-sensitive positions), Ban the Box laws typically include exceptions that allow the employer to inquire at an earlier stage or to apply categorical exclusions required by law.

The connection to expungement and Clean Slate

Ban the Box works as the third layer in a three-part employment-access framework:

Layer 1: Expungement and record sealing. Removes the record from the background check entirely. The strongest protection; the employer never sees the conviction.

Layer 2: Clean Slate automatic sealing. Closes the eligibility gap by automatically sealing records without requiring a petition. Extends the benefit of expungement to the 88-94% of eligible people who never petition.

Layer 3: Ban the Box and fair chance hiring. Protects applicants whose records have not been (or cannot be) sealed by delaying the inquiry and requiring an individualized assessment. Operates as a safety net for people who fall outside the expungement and Clean Slate frameworks.

The three layers are most powerful in combination. In a state with strong expungement laws, Clean Slate automatic sealing, and a robust Ban the Box statute (public and private employers, conditional-offer timing, individualized assessment), a person with a criminal record has the most comprehensive employment protection available.

In a state like Alaska (no true expungement, limited set-aside that does not seal the record), Ban the Box is especially important because the record remains visible on background checks; the hiring process protections may be the only employment protection available.

Practical guidance

For job applicants with criminal records:

Know whether your jurisdiction has a Ban the Box law and what it covers. The law may apply to public employers only, or to both public and private. The timing of the delayed inquiry (after interview vs. after conditional offer) matters.

Even in jurisdictions without Ban the Box, the EEOC guidance applies to employers with 15+ employees. A blanket exclusion based on criminal history can be challenged as disparate impact discrimination under Title VII.

Pursue expungement or sealing of eligible records first. A sealed record does not appear on the background check, which is the strongest protection. Ban the Box is the backup for records that cannot be sealed. See the individual state expungement guides on this site for your state's specific framework.

If an employer withdraws a conditional offer based on your criminal history, request the pre-adverse-action notice and the copy of the background check report (required under the FCRA and under many Ban the Box laws). Review the report for accuracy. If the report includes sealed or expunged records (which it should not), dispute the report with the background check company and file a complaint with the relevant enforcement agency.

The individualized assessment is your opportunity to present context: the nature of the offense, the time elapsed, your rehabilitation, your qualifications, and the irrelevance (if applicable) of the offense to the job. Prepare to address the criminal history constructively if the employer raises it after the conditional offer.

For employers:

Review your hiring process against the applicable Ban the Box law (federal, state, and local). Remove criminal history questions from the initial application if required. Delay the background check to the appropriate stage. Conduct individualized assessments, not blanket exclusions.

Train hiring managers on the EEOC guidance and the applicable Ban the Box requirements. A hiring manager who informally asks about criminal history during an interview in a conditional-offer jurisdiction creates liability.

The FCRA pre-adverse-action process is mandatory whenever you use a consumer report (background check) to make an adverse employment decision. Failure to follow the process creates independent FCRA liability.

Ban the Box is one component of a broader shift toward fair chance hiring. For the one in three American adults with some form of criminal record, the laws represent a meaningful change in employment access: the chance to be evaluated as a candidate before being evaluated as a record. For employers, the laws require a process change (delayed inquiry, individualized assessment) but do not eliminate the ability to consider criminal history in hiring decisions. The combination of Ban the Box, expungement, and Clean Slate together represents the most comprehensive employment-access framework for people with criminal records.