11 min read

Which States Have Ban-The-Box Laws?

Featured Image

There are now 36 states and over 150 cities with ban-the-box laws in some form or another. This means it is illegal to ask job candidates about convictions on applications before you have made them an offer of employment. Ban-the-box does not forbid employers  from running background checks, but some states require a delay in obtaining one until after the first job interview or after a conditional offer of employment is made. Several states also have laws that impose restrictions on an employer's ability to use credit history in making employment decisions.

Which states “Ban the Box”?

The following provides an overview of states that have adopted statewide ban-the-box laws or policies for public-sector employers (within government agencies) and/or private employers and the law's details.

The laws vary significantly from state to state, so it's critical to understand whether the law may affect your organization and how.

Arizona


EXECUTIVE ORDER (2017) (APPLIES TO EMPLOYMENT IN THE EXECUTIVE BRANCH): prohibits certain state agencies from inquiring into an applicant’s conviction or arrest history until after submission of a job application and an initial interview. 


California


Assembly Bill (2017) (Applies to private and public employers with 5+ employees): requires employers to delay any conviction background check as well as any questions about or consideration of a job applicant’s conviction history until after the employer extends a conditional offer of employment to the applicant.



Colorado


HOUSE BILL 1025 (2019) (APPLIES TO PRIVATE EMPLOYMENT): bars employers from stating in a job advertisement or on an application form that a person with a record may not apply as well as from inquiring into or requiring disclosure of an applicant’s record on an initial application. An employer may, however, obtain a “publicly available criminal background report” at any time.


HOUSE BILL 1263 (2012) (APPLIES TO STATE EMPLOYMENT): prohibits state agencies and licensing agencies from performing a background check until the agency determines that the applicant is a finalist for the position or the applicant receives a conditional offer.


CONNECTICUT


HOUSE BILL (2016) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT): prohibits employers from inquiring about arrest and conviction history information on an initial employment application. Employers may not inquire about any erased records at any time. Prior convictions for which the prospective employee received a provisional pardon or certificate of rehabilitation cannot be the sole basis for discharge.


DELAWARE

HOUSE BILL(2014) (APPLIES TO PUBLIC EMPLOYMENT): This bill applies to the state, its agencies, and political subdivisions, such as cities and counties. It prohibits public employers from inquiring into or considering criminal or credit histories of an applicant until after the completion of the first interview.


GEORGIA


EXECUTIVE ORDER (2015) (APPLIES TO STATE EMPLOYMENT): removed questions regarding criminal history from all applications for state employment. Under the executive order, inquiries into an applicant’s criminal record are postponed until after “the initial stage of the state employment application process.” In
addition, the order prohibits the use of an applicant’s criminal record as an automatic bar to employment, and provides applicants an opportunity to dispute the accuracy and relevance of any disqualifying conviction relied upon for rejection.


Hawaii


HOUSE BILL (1998) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT): prohibits inquiring into an applicant’s conviction history until after a conditional offer of employment has been made.  Employers may only consider an employee’s conviction record within the most recent ten years, excluding periods of incarceration. The offer may be withdrawn if the applicant’s conviction bears a “rational relationship” to the duties and responsibilities of the position sought.


Illinois


HOUSE BILL (2014) (APPLIES TO PRIVATE EMPLOYERS WITH 15+ EMPLOYEES AND STATE EMPLOYERS): Employers may not inquire into an applicant’s criminal record until the applicant has been selected for an interview by the employer or until after a conditional offer of employment is made to the applicant.


INDIANA


EXECUTIVE ORDER (2017) (APPLIES TO STATE EMPLOYMENT IN THE EXECUTIVE BRANCH): requires 
the removal of “questions regarding convictions and criminal history” on job applications for positions within the state’s executive branch. ”


KANSAS


EXECUTIVE ORDER (2018) (APPLIES TO STATE EMPLOYMENT IN EXECUTIVE BRANCH): prohibits asking applicants about their conviction or arrest records “during the initial stage of a state employment application.”  Additionally, conviction records can not automatically disqualify an applicant from being interviewed. 


KENTUCKY


EXECUTIVE ORDER (2017) (APPLIES TO STATE EMPLOYMENT IN EXECUTIVE BRANCH): removed “questions regarding convictions and criminal history” from applications for jobs within
the state executive branch until the applicant is offered an interview.


LOUISIANA


HOUSE BILL 266 (2016) (APPLIES TO SOME STATE EMPLOYMENT): prohibits many state government employers from inquiring into an applicant’s criminal history until after an interview or a conditional offer of employment is extended. The law applies to only “unclassified” state positions and further exempts law enforcement, corrections, and other positions for which the law requires a background check.


MAINE


LEGISLATIVE DOCUMENT 170 (2019) (APPLIES TO STATE EMPLOYMENT): prohibits questions about criminal history on an application form for a position in state government. The law does not apply to employment with a political subdivision of the state (such as municipalities or counties), to positions in school administration, or to state government positions for which an applicant may be ineligible because of his or her record and the nature of the position.


MARYLAND

SENATE BILL 839/HOUSE BILL 994 (2020) (APPLIES TO PRIVATE EMPLOYMENT): prohibit employers with at least 15 full-time employees from requiring any job applicant to disclose a criminal record before an in-person interview. The law makes exceptions for employers providing services to minors or vulnerable adults and does not prohibit from making record-related inquiries as required or expressly authorized by federal or state law.

SENATE BILL 4 (2013) (APPLIES TO STATE EMPLOYMENT): prohibits state employers from inquiring into the criminal history of an applicant for employment until the applicant has been provided an opportunity for an interview. Exceptions to the law include positions within the Department of Corrections, the Office of the Sheriff for any county, or where a background check is required by law.


MASSACHUSETTS


SENATE BILL 2583 (2010) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT): prohibits employers from asking on their employment application whether an applicant has been convicted or any crime unless applicable to the position they are applying for. Effective May 4, 2012, the law requires that applicants receive a copy of their background report prior to being asked about their criminal history and if an adverse decision is made based on the background report.


MICHIGAN

EXECUTIVE ORDER (2018) (APPLIES TO STATE EMPLOYMENT): prohibits state departments and agencies from including questions about conviction or arrest history on job applications or job postings. Positions that are prohibited by federal or state law from hiring a candidate with a criminal history are exempted.


MINNESOTA


SENATE BILL 523 (2009, 2013) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT): employers may not inquire into an applicant’s criminal history until after the applicant has been selected for an interview or before a conditional offer of employment.


MISSOURI


EXECUTIVE ORDER 16-04 (2016) (APPLIES TO PUBLIC EMPLOYMENT): requires removal of questions relating to an individual’s criminal history from initial employment applications. The order exempts applications for positions for which people with convictions would be automatically ineligible.


NEBRASKA


LEGISLATIVE BILL 907 (2014) (APPLIES TO PUBLIC EMPLOYMENT): prohibited from inquiring into a job applicant’s criminal history until after the employer has determined the applicant meets the minimum job requirements.


NEVADA


ASSEMBLY BILL 384 (2017) (APPLIES TO PUBLIC EMPLOYMENT): employers may not consider an applicant’s criminal history until the final in-person interview or a conditional offer of employment is extended.


NEW HAMPSHIRE


HOUSE BILL 253 (2020) (APPLIES TO STATE EMPLOYMENT): prohibits asking about arrest or conviction history on job applications, instead requiring them to wait until an interview to make such inquiries.


NEW JERSEY


ASSEMBLY HOUSE BILL 1999 AND SENATE BILL 1484 (2014) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT): employers cannot inquire into a candidate’s criminal history until the first interview and may not consider expunged or pardoned convictions when making an employment decision.


NEW MEXICO


SENATE BILL 254 (2010) (APPLIES TO PUBLIC EMPLOYMENT): prohibits inquiring into conviction history on an employment application until the applicant is "selected as a finalist". The law further prohibits, for employment and licensing, the use of records of arrest not leading to conviction and misdemeanor convictions not involving moral turpitude.

SENATE BILL 96 (2019) (APPLIES TO PRIVATE EMPLOYMENT): prohibits inquiring into an applicant’s history of arrest or conviction on any written or electronic employment application. An employer may consider an applicant’s conviction history “after review of the applicant’s application and upon discussion of employment with the applicant.”


NEW YORK


(2015) (APPLIES TO STATE EMPLOYMENT): prohibits employers from asking about, or acting adversely in response to, arrests or charges that did not result in conviction and are not currently pending. It also makes it an “unlawful discriminatory practice” for any employer or licensing authority to deny employment or licensure, or take other adverse action, based on conviction history unless either “there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual” or the employment or licensure “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”

When considering an applicant with a record, the public agency or private employer must consider several factors, including the job- or occupation-relatedness of the offense, how long ago the offense occurred and the individual’s age at that time, as well as any information produced by the individual related to rehabilitation and good conduct.


NORTH DAKOTA


HOUSE BILL 1282 (2019) (APPLIES TO PUBLIC EMPLOYMENT): prohibits public employer from inquiring about or considering a job applicant’s criminal history until that applicant has been
“selected for an interview.”


OHIO


ADMINISTRATIVE POLICY HR-29 AND HOUSE BILL 56 (2015) (APPLIES TO PUBLIC EMPLOYMENT): removed questions about conviction and arrest history from the initial application for state employment and required hiring decision-maker weigh factors similar to those found in the EEOC guidance.

HB 56 prohibits all public employers, including cities and counties, from including any questions about criminal records on initial applications for employment. The Ohio Fair Hiring Act also prohibits a felony conviction from being used against certain classes of public employees unless the conviction occurs while that person is employed in the civil service.


OKLAHOMA


(2016) EXECUTIVE ORDER 2016-03 (APPLIES TO STATE EMPLOYMENT): required removal of questions regarding convictions and criminal history from job applications. It doesn’t apply to “sensitive government positions” and positions where a felony conviction would automatically disqualify an applicant.


OREGON


HOUSE BILL 3025 (2015) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT): prohibits an employer from inquiring about an applicant’s prior criminal convictions until the initial interview with the applicant. Exceptions include positions where an applicant with a conviction history would be automatically disqualified by law, and for law enforcement, criminal justice positions, and volunteers.


PENNSYLVANIA

ADMINISTRATIVE POLICY HR-TM001 (2017) (APPLIES TO STATE EMPLOYMENT): removed questions about conviction history from job applications and prohibits consideration of certain record information,
including arrests, expunged convictions, and convictions not related to an applicant’s job suitability. Hiring entities are also required to consider the public’s interest in employing individuals with records when making hiring decisions.

Existing Pennsylvania law (18 Pa. Cons. Stat. § 9125) also prohibits public and private
employers from considering felony and misdemeanor convictions beyond the “extent to
which they relate to the applicant’s suitability for employment in the position for which
he has applied.” That statute also requires employers to notify an applicant in writing if
he or she is not hired wholly or partly because of his or her criminal history.

The policy includes exceptions for security personnel, law enforcement, and those working with vulnerable populations.


RHODE ISLAND


HOUSE BILL 5507 (2013) (APPLIES TO PUBLIC AND PRIVATE EMPLOYMENT): prohibits an employer from inquiring about an applicant's prior criminal convictions until the first interview with the applicant. An employer may inquire about the applicant's criminal convictions during the first interview. The law includes exceptions for positions from which an applicant with a conviction history would be automatically disqualified by law.


TENNESSEE


SENATE BILL 2440 (2016) (APPLIES TO STATE EMPLOYMENT): prohibits state agencies from inquiring about criminal records on any initial application form. Employers must consider the specific job duties, relationship of the offense to the job duties, time elapsed since the offense, age of the applicant at the time of the offense, frequency and seriousness of each offense, any submitted evidence of rehabilitation, and any public policy consideration relating to the benefits for employment for applicants with past convictions.


UTAH


HOUSE BILL 156 (2017) (APPLIES TO PUBLIC EMPLOYMENT): prohibits requiring an applicant to disclose conviction history before an initial interview or, before a conditional job offer (if there is no interview).
The law provides for exceptions for situations where a law requires consideration of the applicant’s conviction history as well as for law enforcement, criminal justice, tax commission, or alcoholic beverage control employers, as well as for applicants that will work with children or vulnerable adults and nonemployee volunteers.


VERMONT

HOUSE BILL 261 (2016) (APPLIES TO PRIVATE AND PUBLIC EMPLOYMENT): prohibits asking about criminal record information on the initial employment application form, and the prospective employee must be permitted the opportunity to explain the information, including rehabilitation.


VIRGINIA


HOUSE BILL 757 (2020) (APPLIES TO PUBLIC EMPLOYMENT): requires delay into inquiries about arrests, charges, and convictions until an interview of the prospective employee. The law includes exceptions for certain positions, including those with law enforcement, local school boards, and those that are “sensitive” in nature. 

EXECUTIVE ORDER 41 (2015) (APPLIES TO EMPLOYMENT IN STATE EXECUTIVE BRANCH): requires the removal of questions relating to criminal history from initial applications for state employment in the executive branch and prohibits employers from basing hiring decisions on an applicant’s conviction history unless demonstrably job-related and consistent with business necessity.

In 2020, Governor Northam also signed House Bill 972. The law prohibits any employer from requiring an applicant to disclose any arrest, charge, or conviction of marijuana possession and  limits the availability of records related to any arrest, charge, or conviction of marijuana possession to certain circumstances, including eligibility for firearm purchase, pretrial investigation reports, and probation reports.



WASHINGTON

HOUSE BILL 1298 (2018) (APPLIES TO PRIVATE AND PUBLIC EMPLOYMENT): requires delaying inquiries into conviction records and background checks until after determining an applicant is otherwise qualified for the job. It also prohibits employers from implementing any policy that categorically excludes people with records before the determination as to whether the candidates are otherwise qualified.


WISCONSIN


ASSEMBLY BILL 373 2016) (APPLIES TO STATE EMPLOYMENT): prohibits inquiring about a person’s record on the job application and delays inquiries until the applicant is certified for the position.