Criminal records can be a barrier to employment, and many states and local jurisdictions have implemented laws to restrict employers from asking about an applicant's criminal history on application forms. These laws are often referred to as ban the box or fair chance laws, and they aim to reduce barriers to employment for individuals with criminal records. In California, for example, most employers cannot ask about criminal history before making a conditional job offer. However, employers have a right to see an individual's criminal record before hiring them, but this decision must be related to the job and demonstrate business necessity. This varies by state, and some states allow employers to use criminal records when making hiring decisions.
Characteristics | Values |
---|---|
Location | California, Connecticut, Colorado, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, District of Columbia |
Applicability | Private employers with five or more employees |
Restrictions | Employers cannot ask about criminal history or include criminal-history questions on job applications |
Exceptions | Criminal justice agencies or state or local agencies required by law to conduct a criminal background check |
Criminal records off-limits | Arrest records, diversion programs, dismissed convictions, certain marijuana offenses, juvenile records |
Requirements | Employers must conduct an "individualized assessment" considering the nature and severity of the offense, time elapsed since the offense, and nature of the job |
Notification | Employers must provide written notice of any decision not to hire based on criminal history and give the applicant an opportunity to respond |
What You'll Learn
Ban the box laws
In the US, "ban the box" laws aim to reduce unfair barriers to employment for people with criminal records. These laws prohibit employers from asking about an applicant's criminal history on an initial job application. Instead, employers must consider a candidate's qualifications first, without the stigma of a conviction or arrest record.
The laws are designed to give applicants a fair chance at employment by removing conviction and arrest history questions from job applications and delaying background checks until later in the hiring process. This gives applicants the opportunity to demonstrate their suitability for the job before being asked about their criminal history.
The "box" in "ban the box" refers to the "'check box' on many standard employment applications that asks applicants whether they have ever been convicted of a crime." Many applicants check "yes," knowing that it often means the end of the application process for them. Employers often use this question to weed out applicants with a criminal record, without considering the specifics of the crime, how long ago it happened, or what the applicant has done since then.
As a result, those with a criminal past face high unemployment rates, and studies have shown that lack of employment leads to high recidivism rates. In other words, ex-offenders who are out of work are more likely to commit further crimes. There is also a concern of racial discrimination, as African American and Latino men are arrested and convicted at disproportionately higher rates than Caucasian men.
"Ban the box" laws vary from state to state and city to city, but they generally provide a better chance of employment for people with criminal records. In some jurisdictions, laws go beyond removing conviction history questions from applications and ban employers from including language in job postings that "ask" about criminal history, such as "background check required" or "no felons."
While there is no federal "ban the box" law, as of November 2024, 37 states and over 150 cities and counties have adopted "ban the box" laws. Additionally, the federal government has embraced "ban the box" for federal agencies and contractors.
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Criminal records that employers may never consider
In California, certain types of criminal records are off limits for employers. Employers may not ask about or consider the following at any time during the hiring or employment process, even if the applicant volunteers this information:
- Arrest records: Employers may not ask about arrests that did not lead to convictions or seek or use records related to such arrests. However, they may inquire about arrests that resulted in a conviction or arrests for which the applicant is awaiting trial.
- Diversion programs: Employers cannot ask about an applicant's referral to or participation in a pretrial or post-trial diversion program unless offered by the applicant after receiving a conditional offer as evidence of rehabilitation or mitigating circumstances.
- Dismissed convictions: Employers may not inquire about convictions that have been judicially dismissed, sealed, expunged, or statutorily eradicated. They also cannot consider convictions for which the applicant has received a pardon or a certificate of rehabilitation.
- Certain marijuana offenses: Employers are prohibited from asking about non-felony convictions for marijuana possession that are more than two years old.
- Juvenile records: Employers may not inquire about juvenile records relating to arrest, detention, processing, or adjudication while the applicant was subject to the juvenile court system. California does not consider juvenile court decisions as "convictions."
Additionally, federal laws enforced by the Equal Employment Opportunity Commission (EEOC) prohibit employers from treating people differently based on their race or national origin when considering criminal records. For example, an employer cannot refuse to hire qualified Black men with felony convictions while hiring equally or less qualified White men with similar felony convictions. An employer that rejects applicants of one race with a conviction history at a significantly higher rate than applicants of another race may be engaging in racial discrimination.
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Arrest records
Most states have laws that ban the use of arrest history that did not lead to conviction in hiring decisions. Some states allow the use of arrest records, but an employer may not automatically exclude individuals from employment based on their arrest record. When an arrest record is used, it is only appropriate for an employer to use arrest records in a hiring decision when:
- The arrest is recent
- It is likely the applicant committed the crime
- There is a relationship between the position and the reason for the arrest
In California, most employers cannot ask about a candidate's criminal history before making them a conditional job offer. After making an offer, they can do a criminal history check and ask about convictions. However, they cannot ask about or consider convictions that have been expunged, sealed, dismissed, or statutorily eradicated. They also cannot consider convictions for which the candidate has received a Certificate of Rehabilitation or pardon.
The Fair Credit Reporting Act (FCRA) requires consumer reporting agencies to follow certain guidelines when running background checks and providing employers with consumer reports. When it comes to criminal records, the agency may not include arrest records that are more than seven years old, unless the position pays more than $75,000 a year. Conviction records are not subject to a time limit.
The "Ban the Box" campaign aims to remove questions about past criminal convictions from job applications. Many states and cities have adopted "Ban the Box" laws, pushing background checks to a later point in the hiring process so employers will consider candidates' qualifications first.
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Expunged or sealed convictions
In the United States, the laws regarding criminal history checks during the hiring process vary from state to state. Some states seal criminal records, while others offer expungement. In some states, certain types of crimes are eligible for expungement.
Expunged Convictions
Expungement of a criminal record involves the complete erasure of the conviction, to the extent that the law treats it as if it never happened. An expunged record should not be available to anyone, including law enforcement authorities, and cannot be used as the basis for an enhancement under the law in the case of a new conviction. Only a judge can order that a criminal record be expunged.
Sealed Convictions
Sealing a criminal record means that the record is hidden from public view and cannot be reported as part of a background check for employment, housing, education, and other important purposes. A person with a sealed record can say they have never been convicted of a crime. However, sealed records may still be used as the basis for an enhancement under the law in the event of a new conviction. Sealed records are also accessible to law enforcement and certain other authorities, such as firearm licensing departments. Only a judge can order that a criminal record be sealed.
In California, most employers cannot ask about an applicant's criminal history before making a conditional job offer. After making an offer, employers can conduct a criminal history check and inquire about convictions. However, they cannot consider convictions that have been expunged, sealed, dismissed, or statutorily eradicated. Additionally, they cannot consider convictions for which the applicant has received a Certificate of Rehabilitation or a pardon.
Similarly, in New York, certain felonies and misdemeanors can be sealed, giving individuals with criminal records an opportunity for a fresh start. Once a conviction is sealed, it will not be available to employers who perform employment-related criminal background checks, except for specific positions such as police or peace officers, or if the applicant is joining the military.
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Individualized assessments
In 2012, the Equal Employment Opportunity Commission (EEOC) published guidance on an employer's use of arrest and conviction records. The guidance discourages blanket exclusions of individuals with criminal records and recommends that employers conduct an "individualized assessment" or case-by-case assessment to determine if a criminal conviction was job-related and consistent with business necessity. This gives individuals the opportunity to explain or resolve a criminal history uncovered in a background check.
The EEOC identified two ways employers can demonstrate that an exclusion based on a criminal conviction is job-related and consistent with business necessity:
- The employer validates the criminal conduct screen per the Uniform Guidelines on Employee Selection Procedures standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); or
- The employer develops a targeted screening process that considers the nature and gravity of the offense, the time elapsed since the conviction or completion of the sentence, and the nature of the job. They must then conduct an "individualized assessment" for people excluded by the screening to determine whether the policy as applied is job-related and consistent with business necessity.
The EEOC guidance recommends that the individualized assessment consists of:
- Notifying the individual that they have been screened out because of a criminal conviction;
- Providing an opportunity for the individual to demonstrate that the exclusion should not be applied due to their particular circumstances; and
- Considering whether the additional information provided by the individual warrants an exception to the exclusion.
Employers should consider a variety of factors to determine whether exclusion based on an individual's criminal record should be applied, including:
- The facts or circumstances surrounding the offense;
- The number of offenses for which the individual was convicted;
- Older age at the time of conviction, or release from prison (the EEOC notes that recidivism rates tend to decline as an ex-offender's age increases);
- Evidence that the individual performed the same type of work, post-conviction, with no known incidents of criminal conduct;
- The length and consistency of employment history before and after the offense;
- Rehabilitation efforts (such as education or training);
- Employment or character references and any other information regarding fitness for the particular position; and
- Whether the individual is bonded under a federal, state, or local bonding program.
It is important to note that individualized assessments are not required for all jobs. For example, a daycare provider can screen out applicants with past convictions for child molestation without assessing the applicant further. Additionally, each state and local jurisdiction may have different laws and requirements regarding criminal background checks and hiring processes.
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Frequently asked questions
Ban the Box is a law that requires employers to remove questions about past criminal convictions from job applications. The idea is to push background checks to a later point in the hiring process so employers will consider candidates' qualifications first.
The Fair Chance Act is a law that restricts employers from asking about or considering an applicant's criminal history until after a conditional job offer has been made.
The Fair Credit Reporting Act is a federal law that requires employers to provide notice when accessing a candidate's credit report or criminal record.
Yes, an employer may ask about your criminal history in an interview. It is important that you answer these questions truthfully. If you do not answer truthfully, the employer has the legal right to refuse to hire you or to fire you if they find out later.