Criminal record questions in hiring: what the ban-the-box rules require

Federal law does not bar private employers from asking about criminal records, but the EEOC says an arrest alone is not a reason to refuse a job and blanket conviction screens can discriminate by race or national origin. California (5 or more employees) and New York City (4 or more) go further: conviction questions and background checks must wait until after a conditional job offer, followed by an individual assessment¹³⁵.

These "fair chance" or "ban-the-box" rules exist in many other states and cities too. This guide covers the federal baseline and the two jurisdictions our US courses focus on.

The federal baseline: EEOC guidance

The EEOC's position on pre-employment inquiries about arrests and convictions comes down to three points¹:

• arrests do not prove criminal conduct, so an employer may not refuse to hire someone simply because they were arrested;
• convictions can be considered, but excluding everyone with a record, regardless of the offense and the job, can have a disparate impact by race or national origin under Title VII;
• the employer should look at the nature of the offense, the time elapsed and the nature of the job.

The ADA guidance confirms that asking about arrest or conviction records is not itself a disability-related question². The limits come from Title VII and state law.

California: the Fair Chance Act

California's Fair Chance Act, in effect since January 1, 2018, applies to employers with five or more employees³. In outline:

• No conviction questions before a job offer, including on the application form.
• After the offer, if the employer considers withdrawing it because of a conviction, it must make an individualized assessment of the nature and gravity of the offense, the time elapsed and the nature of the job⁴.
• The employer must notify the candidate in writing of its preliminary decision and give them time to respond, for example with evidence of rehabilitation or to dispute the record, before making a final decision.

The CRD publishes an FAQ and sample forms for each step. Use them, and check the current deadlines there, since the CRD's own documents describe them differently.

New York City: the Fair Chance Act

New York City's Fair Chance Act applies to employers with four or more employees⁵:

• No criminal history questions in job postings, applications or interviews, and no background check, until a conditional offer has been made.
• Non-convictions (sealed cases, dismissals, adjournments in contemplation of dismissal) may never be asked about or used.
• Before withdrawing an offer, the employer must run the Fair Chance Process: a written analysis under the Article 23-A factors (time elapsed, age at the time of the offense, seriousness, evidence of rehabilitation, certificates of relief), a written copy of the records relied on and of the analysis, and at least five business days for the candidate to respond.
• Since 2021, the protections extend to current employees and to pending cases.

A compliant hiring sequence

1. Post the job and interview on qualifications only. No "Have you ever been convicted?" box.
2. Make a conditional offer.
3. Run the background check, where the job and the law allow it.
4. If something comes up, assess the specific offense against the specific job, in writing.
5. Tell the candidate, give them the records and time to respond.
6. Decide, and notify in writing.

Why the order matters

The point of these laws is that the candidate is judged on qualifications first. An early question about convictions, even one you never act on, makes it hard to prove later that the record did not weigh on the decision. The same logic applies to other off-limits topics, listed in illegal interview questions.

Hiring without discrimination (US) trains recruiters to keep interviews on job-related questions, with an AI-simulated candidate and a coach that flags each question. It is unofficial awareness training: the completion record shows the course was completed, not that a legal obligation is met.

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FAQ

Can an employer ask about criminal history on a job application?

Under federal law, a private employer is not barred from asking, but California and New York City prohibit it before a conditional job offer, as do many other states and cities.

Can I refuse to hire someone because of an arrest?

The EEOC says an employer may not refuse to hire someone simply because they were arrested, since an arrest does not prove criminal conduct.

When can I run a background check in New York City?

Only after a conditional job offer, and non-convictions such as sealed or dismissed cases may never be considered.

Which California employers are covered by the Fair Chance Act?

Employers with five or more employees.