Ban the Box

What ban the box laws require

The name comes from the checkbox that used to sit on most job applications: 'Have you ever been convicted of a crime?' Ban the box laws remove that box so candidates are judged on qualifications first. They do not stop employers from running a background check or from turning someone down because of a relevant conviction. They control timing and process.

Laws fall roughly into three tiers:

• Application-only rules. No criminal history question on the application. You can ask in the interview.
• Post-offer rules. No inquiry or check until after a conditional offer. California, New York City, Philadelphia and Los Angeles are well-known examples.
• Full fair chance laws. Post-offer timing plus an individualized assessment of the record, written notice, a chance for the candidate to respond, and a final written decision.

Roughly three dozen states and many cities and counties have some version. Some apply only to public employers; others reach private employers above a headcount. For federal agencies and federal contractors, the Fair Chance to Compete for Jobs Act of 2019 bars criminal history questions before a conditional offer for most positions. Rules vary widely by state and city, so map them to every location where you hire.

How a fair chance assessment works

Where a law requires an individualized assessment, it usually tracks the factors the EEOC set out in its 2012 guidance on arrest and conviction records:

1. The nature and gravity of the offense.
2. The time that has passed since the offense or the end of the sentence.
3. The nature of the job, including duties, setting and level of supervision.

Good assessments also consider evidence of rehabilitation, work history since the conviction, age at the time of the offense and references. California's Fair Chance Act follows a set sequence: assess, send a preliminary decision with the report, give the applicant at least five business days to respond (more if they are getting evidence), consider the response, and send a final written decision explaining the right to challenge it. New York City's process uses its own Fair Chance Notice and analysis form.

The pre-adverse and adverse action notices under the federal FCRA still apply on top of these steps. Most compliant programs combine the two into one workflow so a candidate receives a single, clear sequence of notices.

Worked example: a distribution center with sites in three states

A grocery distribution company runs sites in California, Texas and Illinois and hires about 150 warehouse associates a month. Its old national application asked about convictions in the last seven years.

The TA lead, Kevin, removes the question everywhere instead of maintaining three versions. Background checks start only after a conditional offer for all sites, which satisfies California's post-offer rule and Illinois's restrictions, and costs Texas nothing. He writes a matrix that lists which offenses are reviewed for which jobs, for example recent theft for inventory control roles and recent violent offenses for team lead roles, with a lookback period for each.

Candidates with a hit go to a trained reviewer who applies the matrix, reads anything the candidate sends during the response window, and documents the decision. Over the next quarter, the company finds that about 70% of flagged candidates are cleared after review, and their 90-day retention is no worse than everyone else's.

Ban the box vs fair chance hiring

Ban the box is the legal floor: a rule about when you may ask. Fair chance hiring is the broader practice of recruiting and retaining people with records on purpose, which includes partnerships with reentry programs, clear published criteria, training hiring managers and supporting new hires once they start.

An employer can comply with every ban the box law and still screen out nearly everyone with a record through vague 'character' judgments. That is where disparate impact risk under Title VII lives. Blanket exclusions of anyone with any conviction are hard to defend because they fall more heavily on Black and Hispanic applicants, and the EEOC guidance treats them with skepticism.

Common mistakes

• Removing the box from the application but asking 'anything we should know about your background?' in the phone screen, before the point the law allows.
• Running the background check before the conditional offer in a post-offer jurisdiction because the vendor workflow was set up nationally.
• Job ads that say 'no felons' or 'must pass background check' in places that ban that language.
• Rejecting someone without the required written assessment or response period.
• Considering records that a state says you cannot use at all, such as non-conviction arrests, sealed or expunged records, or certain marijuana offenses.
• Hiring managers seeing raw reports. Keep records with the trained reviewer and share only the decision.

How to build a compliant flow

Start from the strictest law you are subject to and apply it everywhere unless there is a strong business reason not to. A single post-offer process is easier to train and audit than a patchwork.

Write job-related review criteria by job family, have counsel approve them, and keep them out of the application. Set the background check to trigger only on a conditional offer. Build the notice sequence (preliminary notice, response window, final decision) into your applicant tracking system so timing is consistent and logged.

For high-volume roles, the waiting periods add days to time to start. Plan for that in class start dates instead of skipping steps, and keep candidates warm with clear status updates while the review runs.