"Ban the box" refers to laws that generally prohibit employers from asking about criminal history on initial job applications — the literal "have you been convicted of a crime" checkbox. Beyond that, modern laws generally regulate the timing of background checks, the types of records that can be considered, and the procedural requirements when an employer takes adverse action based on a record. The federal Fair Credit Reporting Act (FCRA) generally provides the procedural baseline; state and city laws often add stronger substantive protections, so the specifics depend on where you are. How these rules play out depends on your situation, and they continue to change.
What does federal law say?
How these apply depends on your situation, and the rules can change:
- FCRA procedural requirements: Under the federal Fair Credit Reporting Act, employers using a third-party background check are generally required to:
- Disclose to the applicant that a background check will be conducted, in a stand-alone written document.
- Obtain the applicant's written authorization.
- Before taking adverse action based on the check, provide a pre-adverse-action notice with a copy of the report and a summary of FCRA rights.
- After taking adverse action, provide an adverse-action notice with information about the consumer reporting agency.
- EEOC guidance: The EEOC has issued guidance treating the use of criminal history in employment decisions as something that can create disparate-impact discrimination under Title VII, particularly affecting Black and Hispanic applicants. The EEOC says employers should generally conduct "individualized assessments" weighing the nature of the offense, the time elapsed, and the nature of the job.
How does this vary by state and city?
Most major US labor markets have ban-the-box laws, and your state or city may differ. Common features:
- Delayed inquiry: Many laws generally bar employers from asking about criminal history until after a conditional offer of employment (most aggressive states/cities) or until the initial application stage has ended.
- Restricted records: Some jurisdictions generally prohibit consideration of:
- Arrests not leading to conviction
- Convictions older than a specified period (5-10 years is typical)
- Sealed, expunged, or pardoned records
- Juvenile records
- Individualized assessment requirement: Some jurisdictions (e.g., NYC, the California Fair Chance Act) generally require employers to conduct an individualized assessment before adverse action, considering the time since the offense, the nature of the offense, and the relationship to the job.
- Notice and response opportunity: Many laws generally require employers to notify the applicant of the specific record being considered and give the applicant an opportunity to respond before final adverse action.
- Sealing and expungement: Once a record is sealed or expunged, many jurisdictions generally treat it as something you may lawfully answer "no" to when asked about that record — though the rules vary by state, so what applies to you depends on your situation.
How do you handle a criminal-history question, step by step?
1. Knowing what is on your record
Many people request their own background check from a major consumer reporting agency before applying — verifying accuracy and disputing incorrect entries. Under the FCRA, consumers are generally given the right to a free annual report from each major agency.
2. Knowing your state and city law
The level of protection varies widely. Many people find it worth the time to check their state attorney general's site and any city ban-the-box ordinance, since the rules differ by jurisdiction.
3. Timing disclosure carefully
If you have a record, the decision when (and whether) to disclose proactively is strategic. What people weigh generally includes:
- Whether the law in your jurisdiction prohibits the question at certain stages
- The nature and recency of the record
- The job and industry
- Whether the record can be sealed or expunged
In most cases, the law does not require you to volunteer the information before the employer is allowed to ask — though the specifics depend on your jurisdiction.
4. Responding to pre-adverse-action notices in writing
If you receive a pre-adverse-action notice (showing the employer is considering not hiring you based on the background check), the FCRA generally gives applicants the opportunity to:
- Review the report
- Dispute inaccuracies with the consumer reporting agency
- Submit a written response addressing the record
- Request reconsideration based on rehabilitation, time elapsed, and job-relatedness
People often report that a carefully prepared response, especially with supporting documentation (rehabilitation evidence, character references, time elapsed), can influence the outcome — though results depend on the employer and your situation.
Scripts people commonly use
Responding to a pre-adverse-action notice:
"I have reviewed the background check report and want to provide context regarding the [specific record]. The offense occurred [N] years ago. Since then, I have [rehabilitation evidence — work history, certifications, education]. I respectfully ask that the company conduct an individualized assessment considering: (a) the nature of the offense, (b) the time elapsed, (c) my employment history since, and (d) the specific duties of the position. I am happy to discuss further."
Disputing an inaccurate record:
"The report shows [specific entry], which is inaccurate. The actual disposition was [correct information]. Attached is documentation. I have filed a dispute with [consumer reporting agency]. Please hold the adverse action pending resolution of the dispute."
When asked about criminal history before a conditional offer (in ban-the-box jurisdictions):
"I'd prefer to discuss any background-check matters after we've established mutual interest in proceeding to a conditional offer. I understand the company's process and look forward to engaging in the appropriate stage."
What should you document?
- Your own background check report and any disputes filed
- The application materials and any FCRA disclosure/authorization signed
- The pre-adverse-action notice (if received) and your written response
- Communications with the employer about the record
- Any references or rehabilitation documentation
- The job description and any specific duties relevant to the record
When should you escalate?
If you suspect an employer is violating ban-the-box or FCRA rules, common steps people take include:
- Filing a complaint with the Consumer Financial Protection Bureau (CFPB) for FCRA violations.
- Filing with your state attorney general or city agency for ban-the-box ordinance violations.
- Filing an EEOC charge for disparate-impact discrimination, particularly for someone in a class disproportionately affected by criminal records where the employer's policy is overbroad.
- Consulting an employment attorney for FCRA technical violations (improperly disclosed authorization, missing pre-adverse notice, etc.) — these can be class actions and generally carry statutory damages.
FCRA violations are technical but real — under the statute, even a minor procedural defect (missing standalone disclosure, defective authorization) can generally support a claim with statutory damages plus attorney's fees. Whether any of this applies depends on your situation. Many employment attorneys take these cases on contingency.
Official sources
- U.S. Equal Employment Opportunity Commission — Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII
- Consumer Financial Protection Bureau — Credit reports and scores (including your rights under the Fair Credit Reporting Act)