Ban-the-box laws by state: what must employers do?
Ban-the-box (fair chance) laws limit when an employer may ask about criminal history, usually delaying the question until after an interview or a conditional job offer. They vary by state, county and city, so the rule that applies depends on where the job is located. Check each place you hire.
US rules as of 31 October 2026.
At a glance
- The goal is that a person is judged on qualifications first, and a record is considered later and individually.
- Many laws require a written assessment and a chance to respond before you withdraw an offer because of a record.
- These laws sit on top of the federal Fair Credit Reporting Act (FCRA) steps, they do not replace them.
- Coverage depends on employer size, job location and sometimes whether you are public or private.
How do the laws work in practice?
Most fair chance laws follow the same sequence:
- Do not ask early. Remove the criminal history checkbox from the application and do not list "no felonies" or "background check required" as a screen in the posting.
- Make a conditional offer. Only after a conditional offer can you ask about, or order a check for, conviction history.
- Assess the record individually. Weigh how the record relates to the specific job, not just whether a record exists.
- Tell the person and allow a response. Share what you found and your assessment, and give a set number of days to respond before deciding.
- Send final notice. If you still decline, say so in writing.
What do real examples require?
Two official examples show the pattern, and they are not a substitute for your own location's rules:
| Place | What the official site says |
|---|---|
| California | The Fair Chance Act generally prohibits employers with five or more employees from asking about conviction history before making a job offer. |
| New York City | For employers with four or more employees, no criminal history questions or searches before a conditional offer. Before withdrawing an offer or taking adverse action, the employer must complete a written fair chance analysis, share it with the written inquiry, and allow at least five business days to respond. |
Both sites also describe exceptions, for example roles where a law requires a background check. Read the exemption language before relying on it, because exemptions are read narrowly.
How does this fit with federal law?
- EEOC. The federal EEOC says background-check standards must be applied equally, and that a policy excluding people with certain records can violate federal law if it disadvantages a protected group and is not job related and consistent with business necessity.
- FCRA. If a screening company supplies the report, you still owe a stand-alone written notice, written permission, a pre-adverse action notice with a copy of the report, and a final adverse action notice. See FCRA compliance and FCRA pre-adverse action.
- Federal hiring. The federal government has its own fair chance rules for federal agency hiring; confirm with the agency or contractor requirements if you are one.
A simple compliance checklist
- List every state, county and city where you have employees or applicants.
- For each, find the official agency page and note who is covered, when you may ask, and the response period.
- Remove criminal history questions from the application and from the first interview stage.
- Write a short, role-based assessment form: the duty, the offense, how long ago, and why it matters for the job.
- Keep copies of notices, the assessment and the response.
- Run background checks only after a conditional offer. The conditional offer letter template helps.
FAQ
Does ban the box mean I can never check criminal history? No. It delays when you ask, and in many places requires an individual assessment when you do.
Do these laws apply to remote workers? It depends on the law. Many key off where the work is performed or where the applicant lives, so check each location.
Where do I find my state's rule? Search your state labor or civil rights agency site for "fair chance" or "criminal history" in hiring.
Sources
- EEOC, Background Checks: What Employers Need to Know - https://www.eeoc.gov/laws/guidance/background-checks-what-employers-need-know (accessed 31 October 2026)
- California Civil Rights Department, Fair Chance Act - https://calcivilrights.ca.gov/fair-chance-act/ (accessed 31 October 2026)
- New York City Commission on Human Rights, Fair Chance Act - https://www.nyc.gov/site/cchr/law/fair-chance-act.page (accessed 31 October 2026)
- FTC, Background Checks: What Employers Need to Know - https://www.ftc.gov/business-guidance/resources/background-checks-what-employers-need-know (accessed 31 October 2026)
This is general information, not legal, tax or immigration advice. Rules change and your situation may differ. Consult a licensed attorney or qualified adviser.