The collateral consequences of a criminal conviction can last for years and have
a detrimental effect on a person’s voting rights; gun rights; immigration status;
eligibility for federal assistance programs (e.g., SNAP or federal student financial
aid) and more. One of the most significant of these consequences is the negative
impact a conviction has on a person’s ability to obtain work. Anyone with a criminal
conviction faces an uphill battle when it comes to getting hired. Over the past
two decades, however, several states and localities have passed laws aimed at
reducing some of the employment barriers faced by ex-offenders. This so-called
“ban the box” legislation limits the ability of employers to inquire about criminal
convictions during the hiring process.
I. POST-CONVICTION EMPLOYMENT BARRIERS
Post-conviction barriers to employment are real and significant. All 50 states and
the federal government impose some sort of employment licensing restrictions
on individuals with a criminal conviction. The federal government, for instance,
prohibits convicted felons from working in airport security. Several states prohibit
an individual with a felony conviction from working as a firefighter, a real estate
agent, a contractor, doctor, barber or hairdresser. In addition, doctors, attorneys,
and certified financial planners and accountants may face professional censure
from licensing agencies as a result of a conviction. The stigma of a conviction and
the common (but often unfounded) fear many employers have of potential liability
for hiring a convicted felon also create unwritten, but nonetheless real, barriers.
Barriers to employment attach whether a conviction stems from a guilty plea
entered as part of a plea bargain or from a jury verdict of guilty. While conviction
of a felony (generally, a serious crime punishable by more than a year in jail/prison)
typically creates the most problems, some types of misdemeanor convictions can
make finding work challenging as well.
To make matters worse, obtaining and maintaining employment often is a
condition of probation, but these barriers to employment can make it difficult, if
not impossible, to meet this condition. Under those circumstances, an inability
to find work can cause more than just financial stress; it can land a person in jail
for a probation violation, despite his or her best efforts to comply.
II. A BRIEF HISTORY OF BAN-THE-BOX LAWS
Hawaii passed the first ban-the-box law in 1998. Still in effect today, the legislation
prohibits both public and private employers from asking about convictions on job
applications. It also prevents companies from delving into an applicant’s criminal
history until after extending a tentative job offer. Furthermore, in order to revoke an
offer based on a criminal conviction, an employer must be able to show a logical
relationship between an applicant’s criminal history and the job requirements.
Hawaii was first, but many have followed. As of 2020, 35 states and the District
of Columbia have passed laws limiting the rights of employers to inquire about
criminal convictions. In addition, approximately 150 localities across the country
– including Los Angeles, San Francisco, Baltimore, Chicago and Rochester -- have
similar legislation on the books. According to the National Employment Law
Project (NELP), approximately three-quarters of the population live in a jurisdiction
with some type of ban-the-box law.
While no federal law currently prohibits inquiry into an applicant’s criminal history,
regulations imposed by the U.S. Office of Personnel Management (OPM) prohibit
most federal agencies from asking about criminal history on job applications.
Plus, in December 2019, Congress passed the Fair Chance to Compete for Jobs
Act (FCA) as part of the National Defense Authorization Act (NDAA). This federal
ban-the-box legislation applies to all federal agencies, as well as federal civilian
and defense contractors. It prohibits covered employers from asking an applicant
about arrest and conviction history until after a conditional offer of employment has
been made. The FCA requires federal oversight entities to adopt procedures for
reporting violations of the law. It also provides for a series of escalating penalties
for violation of the law. The FCA is slated to take effect two years after the NDAA
is signed into law by the president (so, i.e., in December 2021).
III. SCOPE OF STATE AND LOCAL BAN-THE-BOX PROTECTIONS
Several different approaches exist when it comes to ban-the-box laws, but even the
least restrictive prohibit employers from inquiring about convictions on job
applications. That is, employers cannot ask applicants to check a box on an
employment application to disclose whether they have ever been arrested or
convicted of a crime [e.g., “___Yes / ___ No (check one)”]. Beyond this basic protection,
a great deal of variation exists when it comes to what these state and local laws do.
Whether the law applies to public, private or both types of employers is a major
differentiating factor. Most of the 35 states with ban-the-box legislation limit
public employers’ ability to inquire about convictions when hiring. The District of
Columbia and several cities, including New York City, Rochester and Los Angeles,
extend the law to government contractors as well.
Some states take things even further and apply the law to most private employers.
States with this approach include California, New Mexico, Vermont and Washington.
Philadelphia, Spokane and 16 other localities have similar rules.
In addition, ban-the-box legislation typically applies only to workplaces with a
certain minimum number of employees. The vast majority of these laws do not
apply to most small businesses. California’s statute, for instance, only covers
workplaces with more than 5 employees. Austin’s legislation excludes companies
with fewer than 15 employees. In the District of Columbia, the magic number is
10 or more employees.
Another difference among ban-the-box laws across jurisdictions involves the point
during the hiring process at which an employer may inquire about an applicant’s
In states, like Connecticut, which only prohibit questions about criminal convictions
on initial applications, employers can legally go down that road as soon as a
candidate has submitted a completed application and officially applied. In Illinois,
companies can consider the criminal record of any individual invited for an
interview. Other states and localities allow employers to inquire about criminal
convictions at the end of an interview or after the selection process has been
completed. Still other jurisdictions only permit businesses to ask about a criminal
conviction after the extension of a tentative job offer.
Use of Information
What companies can do with criminal history information also varies. Some states
and localities place no limits on how employers can use information about criminal
convictions. Others, such as Hawaii, California and Colorado, only allow businesses
to consider convictions that have a reasonable relationship to the type of work
the candidate will be expected to do.
Notice requirements vary from jurisdiction to jurisdiction. Some states demand
that employers give applicants copies of their criminal history. Others insist that
businesses notify applicants in writing of why they were not hired if the hiring
decision was based on the individual’s criminal history. A few jurisdictions have
established appeals processes that candidates can use to challenge adverse
employment decisions by presenting mitigating information.
Almost all ban-the-box laws carve out exceptions for certain professions, such as
law enforcement personnel, healthcare workers and childcare professionals. All
jurisdictions permit employers to consider criminal convictions that are closely
related to core business functions at some point during the hiring process. For
instance, no law anywhere prohibits a transportation company from inquiring
about and considering drunken-driving convictions when hiring new truckers.
IV. LEARN MORE
With the variations in state and local laws, you may be wondering, “How can I
know what law (or laws) applies to me?” Here are three easy-to-access resources
for more information:
1. NELP has a great website that provides detailed information about state and
local ban-the-box laws, including a quick-reading, comprehensive chart:
(a) Visit https://www.nelp.org/publication/ban-the-box-fair-chance-hiringstate-
and-local-guide/#Chart_of_Local_Fair_Chance_Policies; (b) click on
the box at the bottom of the page [“download complete publication”] to
download the NELP ban-the-box resource guide; (c) find and review the
chart at the end of the guide.
2. Google “ban the box [your state]” or “ban the box [your county].” You will
find lots of leads and links.
3. Reach out to a local legal aid organization and/or your local chapter of the
ACLU. Attorneys at either of these organizations should be able to answer
your questions or refer you to someone who can. This can be particularly
useful if you live in a state or locality without ban-the-box legislation; in that
instance, it may be helpful to speak with an employment attorney about
whether your jurisdiction’s fair employment laws cover criminal-history based