Ban the box means an employer removes the criminal history checkbox and question from the initial job application, and generally cannot ask about or consider criminal history until later in hiring, often after an interview or a conditional job offer. More than 35 states and over 150 cities and counties now have some form of this “fair chance” rule on the books, and the exact trigger point, covered employers, and required process after a conditional offer differ by jurisdiction. This guide walks through what the laws generally require, how a handful of representative state and city rules compare, and how ban the box interacts with the federal adverse action process under the Fair Credit Reporting Act.
What “ban the box” actually changes in the hiring process
Ban the box laws target the timing of a single question: when can an employer ask about criminal history? They do not ban criminal history checks. In most jurisdictions with a fair chance law, an employer can still request an employment background check and consider criminal record results, just not on the initial application or, in stricter jurisdictions, not until after a conditional offer of employment has been made.
Two design patterns show up across the country:
- Application-stage laws. The employer cannot ask about criminal history on the written job application, but may ask in an interview or run a check once the applicant has advanced in the process.
- Conditional-offer laws. The stricter model, used by California, New York City, Colorado’s broader intent, and the federal government’s own hiring process. The employer cannot ask about or consider criminal history at all until a conditional offer of employment has been extended.
Under either model, once criminal history enters the picture, most fair chance laws require the employer to weigh it against the specific job rather than apply a blanket rule. That principle also runs through the U.S. Equal Employment Opportunity Commission’s long-standing guidance on the use of arrest and conviction records, which describes a targeted, individualized assessment, considering the nature of the offense, the time that has passed, and the nature of the job sought, as the practice most consistent with Title VII of the Civil Rights Act (EEOC Enforcement Guidance on Arrest and Conviction Records). The guidance states that an exclusion based on an arrest alone, without a conviction, is not job related and consistent with business necessity, and that a blanket policy screening out anyone with any conviction record raises legal risk. Criminal history is one input for an individualized decision, not an automatic disqualifier.
Ban the box for federal employers and contractors
The pattern extends to federal hiring itself. The Fair Chance to Compete for Jobs Act of 2019 generally prohibits federal agencies, and federal contractors acting on an agency’s behalf, from requesting that an applicant disclose criminal history before a conditional offer is made. The U.S. Office of Personnel Management finalized regulations implementing the Act on September 1, 2023, governing the timing of criminal history inquiries in federal hiring, with limited exceptions for positions involving national security, law enforcement, or access to classified information (OPM memorandum, Issuance of Regulations on the Fair Chance to Compete for Jobs Act of 2019, April 25, 2024).
How state and city fair chance laws differ
Below are jurisdictions whose current fair chance requirements are verifiable on an official state or city government source as of this writing. Requirements change, and this table is a starting point for research, not a compliance checklist.
| Jurisdiction | Covered employers | When criminal history may be asked about | Official source |
|---|---|---|---|
| California (statewide) | Public and private employers with 5 or more employees | Generally not before a conditional job offer | California Civil Rights Department, Fair Chance Act FAQ, Government Code section 12952 |
| Illinois (statewide) | Employers with 15 or more employees | Not until the applicant is selected for an interview, or if there is no interview, until after a conditional offer | 820 ILCS 75/15, Job Opportunities for Qualified Applicants Act, Illinois General Assembly |
| Massachusetts (statewide) | Most employers, with narrow exceptions where law mandates disqualification for certain roles | Not on the initial written application form; may be raised later in the process | Massachusetts General Laws chapter 151B, section 4, Massachusetts Legislature |
| Colorado (statewide) | All private employers, regardless of size, except government agencies | Not on the initial job application or in job postings that say a person with a record may not apply | Colorado Chance to Compete Act, C.R.S. section 8-2-130, Colorado Department of Labor and Employment INFO #9C |
| Washington (statewide) | Most private employers, with exceptions for roles involving unsupervised access to children or vulnerable adults | Not until the employer has determined the applicant is otherwise qualified and extended an offer, which may be conditioned on the background check | Revised Code of Washington chapter 49.94, Washington State Attorney General’s Office |
| New York City | Employers with 4 or more employees, including the owner | Not before a conditional offer of employment | NYC Human Rights Law, Local Law 4 of 2021, NYC Commission on Human Rights |
A few patterns stand out. Employer size thresholds vary widely, from Colorado covering employers of any size to Illinois setting the line at 15 employees. The trigger point for asking about criminal history varies too, with some jurisdictions allowing the question at the interview stage and others holding the line at a conditional offer. And several jurisdictions, including California, Colorado, Washington, and New York City, layer their own individualized assessment and notice requirements on top of federal FCRA obligations once criminal history does come up.
This is a representative sample, not a complete list. Dozens of other states, cities, and counties have their own versions, and requirements are revised regularly, so confirm the current rule for any jurisdiction where hiring actually takes place before relying on it.
How ban the box interacts with the FCRA adverse action process
Ban the box governs timing and use of criminal history in the hiring decision itself. The Fair Credit Reporting Act governs a separate, parallel set of obligations that apply whenever an employer orders a criminal background check or other consumer report from a background screening company. Under the FCRA, an employer must obtain written authorization and provide a standalone disclosure before ordering a report, and if a report contributes to a decision not to hire, the employer follows the adverse action process: a pre-adverse action notice with a copy of the report and the Summary of Rights, a reasonable waiting period for the applicant to respond, and then a final adverse action notice if the employer proceeds.
A fair chance law can add its own layer on top of that federal process rather than replace it. New York City’s Fair Chance Process, for example, requires a written individualized analysis under Article 23-A factors and at least five business days for the applicant to respond before a conditional offer can be withdrawn. California’s Fair Chance Act works the same way: written notice, a copy of the report, and at least five business days to respond, running alongside FCRA notice obligations. We cover the federal side of that timeline in more detail in our post on the FCRA adverse action process.
What this means for building a hiring workflow
For an employer hiring across states, or a staffing agency placing candidates in different cities, the challenge is less about any single law and more about the patchwork. A workflow built around the strictest applicable rule (remove the box, hold criminal history until after a conditional offer, document an individualized assessment, and layer the FCRA notices on top) tends to travel well across jurisdictions. Because look-back periods and record visibility also vary by state, it helps to pair fair chance research with jurisdiction-specific rules on how far back a report can go, covered in our background check seven-year rule by state post.
None of this changes what shows up on a report itself. Reveal Background’s role is to return the requested records so a hiring manager or compliance team can complete an individualized review, not to make the hiring decision. See our employment background check page for how county, state, and federal criminal searches fit into a screening package, and our staffing background check page for multi-state placements. Pricing for standard screening packages is on our pricing page.
Frequently asked questions
Does ban the box mean employers cannot run a background check?
No. Ban the box laws change when in the hiring process criminal history can be asked about or considered, not whether an employer can request a background check at all. Most fair chance laws still allow a criminal history check once the applicant reaches the permitted stage, commonly after an interview or a conditional offer, and an employer still needs to follow separate FCRA authorization and disclosure rules before ordering the report.
Can an employer reject a candidate just because they have a criminal record?
Jurisdictions with fair chance laws, along with EEOC guidance on the use of criminal records under Title VII, point toward an individualized assessment rather than an automatic exclusion. That generally means weighing the nature of the offense, how much time has passed, and how the record relates to the specific job, rather than applying a blanket rule against anyone with any conviction. Requirements vary by jurisdiction, so employers should confirm the specific standard that applies to their hiring locations.
Is ban the box the same as the FCRA adverse action process?
No, they are separate but related. Ban the box laws are state or local rules about the timing and use of criminal history in a hiring decision. The FCRA adverse action process is a federal requirement that applies whenever a consumer report contributes to a decision not to hire, regardless of whether a ban the box law also applies, and it includes its own notice and waiting period steps.
Do ban the box laws apply to small businesses?
It depends on the jurisdiction. Some laws, like Colorado’s Chance to Compete Act, apply to private employers of any size. Others set an employee count threshold, such as California’s 5-employee threshold, New York City’s 4-employee threshold, or Illinois’s 15-employee threshold. There is no single national employee-count rule, so the applicable threshold has to be checked jurisdiction by jurisdiction.
Do ban the box rules apply the same way to remote hires or out-of-state applicants?
Coverage generally follows where the job or the employee is based rather than where the company’s headquarters sits, and city-level laws such as New York City’s can apply based on where an employee physically works even for an otherwise out-of-state employer. Multi-state employers typically need to check the rule tied to each work location rather than assuming one state’s law covers the whole company.
Disclaimer
This article is general information, not legal advice. Ban the box and fair chance hiring requirements vary by state and city, change over time, and often include additional local ordinances beyond the state law. Employers should confirm current obligations for each jurisdiction where they hire with their own employment counsel before building or changing a hiring workflow.
