Employment Laws by State and City: A Guide to “Ban the Box”

Since 1998, employment laws seeking to “ban the box” asking about a job applicant’s criminal history have spread throughout the U.S. With “ban the box” employment regulations affecting private employers across 16 states (plus D.C.), it is unlikely that this criminal record legislative trend will go away anytime soon. If you are a private employer, take some time to review what “ban the box” laws are, the EEOC’s 2012 guidance, and whether specific criminal screening laws are in place near you.

What are "Ban the Box" Laws?

“Ban the Box” legislation aims to remove the ‘box’ on employment applications that ask if an applicant has ever been convicted of a crime. By using this check box for employment purposes, pro-ban the box activists and politicians argue that the use of criminal records before an applicant has been interviewed or received a conditional offer of employment discriminates against applicants who have served their time.

“Ban the Box” laws vary by state, and oftentimes even by city or county. However, most laws restrict when you can ask a job applicant about their criminal history to either:

  • During the interview process
  • After a conditional offer of employment has been made

Most laws prohibit employers from asking about criminal records on the initial job application, and in some cases, prohibit advertising that criminal screening is a part of your hiring process on the job listing.

Beyond restricting when you can request a criminal background check for employment purposes, some laws go further by restricting what types of criminal records can be considered and what steps you’re required to take if something on the criminal report results in a denial. Pay close attention to these two factors as they are the most varied state to state.

The EEOC's Background Check Guidance

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC or Commission) created the “2012 Enforcement Guidance on the consideration of Arrest and Conviction Records in Employment Decisions Under Title VII”. The EEOC enforces Title VII, which prohibits employment discrimination based on race, color, religion, sex, or national origin. While having a criminal record is not currently a protected basis in Title VII of the Civil Rights Act of 1964, the EEOC can investigate whether an employer’s reliance on criminal records to deny employment violates Title VII as part of an employment discrimination claim. In order to defend the usage of criminal records for employment purposes, the EEOC guidance recommends two avenues: formal validation and individualized assessments.

Since formal validation is quite complicated and can be costly, most employers conduct individualized assessments when determining whether specific criminal conduct could be linked to the eligibility of a particular job position, and whether there should be concerns about the risks of putting a job applicant within a particular position (i.e. DUI records for a driving position). The individualized assessment process starts with the employer notifying the applicant that they may be excluded due to past criminal conduct. Then, the job applicant will have the opportunity to dispute the record or show other relevant evidence.

Rental properties that are affected by “just cause” eviction laws can only evict their tenants if they fit into one of the “just cause” categories. Without just cause, rental properties who violate this law can face serious legal penalties.

Even if your city or state doesn’t have “just cause” eviction laws, it’s a good practice to document why the eviction is necessary regardless, so consider this an extra cautionary step in your eviction process.

Quick Tip!

If your “Ban the Box” law requires an individualized assessment, then the number of days given to the applicant to dispute will be specified.

"Ban the Box" Employment Laws

Please note that this list does not include city ordinances that ONLY pertain to contractors or vendors to the city. Nor does it include city policies that have “ban the box” employment procedures in place for government employees.
Last updated 3/12/19

California’s Fair Employment and Housing Act Revisions
(AB 1008)

Effective: January 1, 2018

Applies to: Almost all employers with 5 or more employees

Law Attributes: This added section to the California Fair Employment and Housing Act (FEHA) is similar to other “ban the box” laws in that it requires a conditional offer of employment must be extended to the applicant before conducting a criminal background check. However, it is unique in that the employer cannot deny an applicant a position solely or in part because of the applicant’s conviction history until the employer performs an individualized assessment. There are additional requirements regarding the individualized assessment.

 

Los Angeles, CA’s Fair Chance Initiative for Hiring Ordinance
(See FCIHO ordinance)

Effective: January 22, 2017

Applies to: Most employers within the City of Los Angeles with 10 or more employees

Law Attributes: Affected employers cannot take any adverse action unless they perform a written assessment. California state law (see above) also requires an assessment – be sure to check to see if there are differences in assessment requirements in local and state law. All records and documents relating an applicant must be retained for no less than 3 years after receipt of the employment application.

The City and County of San Francisco’s Fair Chance Ordinance
(See ordinance, required forms, etc.)

Effective: February 2014, with amendments in effect on October 1, 2018.

Applies to: Most employers with 5 or more employees

Law Attributes: While employers must only consider convictions (after a conditional offer has been extended) that are directly related to the job, the ordinance also prohibits considering convictions that fall under specific guidelines (i.e. a conviction for decriminalized conduct like the non-commercial use/cultivation of cannabis). The 2018 amendments require that the FCO Poster must be posted at each workplace or job site and that employers covered by the Fair Chance Ordinance must submit the Employer Annual Reporting Form (available online by April 1, 2019) by April 30, 2019.

Connecticut’s “An Act Concerning Fair Chance Employment”
(Public Act No. 16-83)

Effective: January 1, 2017

Applies to: All employers with 1 or more employees

Law Attributes: Unlike other “ban the box” laws that require employers to wait until after an interview/conditional offer until inquiring about an applicant’s criminal history, Connecticut does not have this restriction. Employers may inquire about an applicant’s criminal history at any time, as so long as it is not on the initial employment application.

D.C.’s “Fair Criminal Record Screening Amendment Act of 2014”
( See FCRSA, the Act)

Effective: December 17, 2014

Applies to: Employers with over 10 employees

Law Attributes: Employers may obtain information about an applicant’s criminal convictions after a conditional offer of employment but are prohibited from accessing information about an arrest or criminal accusation that did not result in a conviction/is not currently pending.

Hawaii’s “Ban the Box” Law
(HRS 378-2.5)

Effective: 1998

Applies to: Private employers

Law Attributes: This law prohibits employers from inquiring into an applicant’s criminal history until after a conditional offer of employment has been made.

Illinois’s Job Opportunities for Qualified Applicants Act
(Act 98-0774)

Effective: January 1, 2015

Applies to: Most private employers with 15 or more employees

Law Attributes: This law is simple – employers cannot inquire into an applicant’s criminal history until after the initial interview, or until a conditional offer of employment has been made.

Chicago’s “Ban the Box” Ordinance
(Page 11: Chicago Municipal Ordinance 2-160-054)

Effective: January 1, 2015

Applies to: All private employers within the City of Chicago

Law Attributes: In addition to Illinois’s law, employers within the City of Chicago must inform applicants of the basis for rejection (if the rejection is based in whole/in part on the applicant’s criminal history).  Chicago also provides very different penalties.

Cook County, IL’s Ordinance
(Ordinance 15-4214)

Effective: July 29, 2015

Applies to: Private employers with less than 15 employees (those who do not qualify under the State-wide law)

Law Attributes: This law mirrors Chicago’s ordinance.

Baltimore, MD’s Ordinance

Effective: August 2014

Applies to: Employers with 10 or more employees

Law Attributes: Prohibits employers from asking about an applicant’s criminal record on the employment application – waiting until there is a conditional offer extended.

Montgomery County, MD’s “Fair Criminal Record Screening Standards Law”
(Bill 36-14)

Effective: November 10, 2014

Applies to: Employers with 15 or more employees

Law Attributes: Unlike Baltimore, which allows employers to ask about criminal history after a conditional offer has been extended, Montgomery County allows employers to inquire into an applicant’s criminal records after the first interview.

Prince George’s County, MD’s “Ban the Box” Law
(CB-078-2014)

Effective: December 4, 2014

Applies to: Employers with 25 or more full-time employees

Law Attributes: This law is similar to Montgomery County’s in that it allows employers to inquire into a job applicant’s criminal history after the interview.

Massachusetts Law
(Mass. Gen. L. c. 151B § 4(9) and Amendment, S.2371)

Effective: August 2010, with recent amendments in effect on October 13, 2018

Applies to: Private employers

Law Attributes: Massachusetts currently prohibits criminal history questions from being on the initial job application and bans inquiries into certain types of criminal convictions. The amendments effective in 2018 prohibits employers from inquiring into criminal records that have been sealed or expunged. It also requires new notice language and reduces the time period for the disclosure of misdemeanor convictions (originally 5 years) to 3 years.

Minnesota’s “Ban the Box” Law
(See law and guidance)

Effective: 2009 for public employers, with amendments made for private employers on January 1, 2014

Applies to: All Minnesota employers

Law Attributes: Unlike other states, Minnesota does not currently require employers to perform an individualized assessment if the job applicant is not hired based on a relevant record on their criminal background check.

Columbia, MO’s “Fair Chance Hiring Law”
(Sec. 12-90)

Effective: December 2014

Applies to: All employers

Law Attributes: Like many “ban the box” laws, this ordinance bans criminal history questions until after a conditional offer has been extended.

Kansas City, MO ordinance
(Ordinance no. 180034)

Effective: June 9, 2018

Applies to: Most private employers with 6 or more employees

Law Attributes: This ordinance amends the Kansas City Human Relations Act and prohibits employers from basing their hiring decision on an applicant’s criminal history, unless they can prove the decision was based on all available criminal information.

New Jersey’s “The Opportunity to Compete” Act
(chapter 32, 2014) (S-3306, 2017)

Effective: March 1, 2015, with amendments in effect on December 20, 2017

Applies to: Most private employers with 15 or more employees

Law Attributes: The amendments made in 2017 prohibit private employers from asking about an applicant’s expunged criminal records before the initial application process (pre-interview). This includes on online job applications.

Buffalo, NY’s Ordinance
(Chapter 154 of the Code of the City of Buffalo)

Effective: January 1, 2014

Applies to: Employers with 15 or more employees

Law Attributes: Employers in Buffalo, NY are prohibited from asking whether an applicant has been convicted of a crime on the employment application. Employers can, however, ask about criminal convictions during the interview stage.

New York City’s “Fair Chance Act” (FCA)
(Fair Chance Act Guidance)

Effective: October 27, 2015, with additional regulations in effect August 5, 2017

Applies to: All employers with 4 or more employees

Law Attributes: Employers are prohibited from inquiring into an employment applicant’s criminal history until after a conditional offer has been extended. Employers also cannot reference a criminal background check (as part of the hiring process) on any job listing advertisements or applications (as per 2017 guidance). Be aware that there is a strict review and notice process required by the FCA, which, among other requirements, includes providing the applicant a copy of the employment screening report and the employer’s Article 23-A analysis.

Rochester, NY’s “Ban the Box” Ordinance
(Chapter 63, Article II of the City of Rochester Municipal Code)

Effective: November 18, 2014

Applies to: All employers with 4 or more employees

Law Attributes: This is a standard “ban the box” ordinance. Employers cannot inquire into an applicant’s criminal history until after the initial job interview or conditional job offer.

Oregon’s “Ban the Box” Law
(659A.360)

Effective: January 1, 2016

Applies to: Private employers

Law Attributes: Oregon employers are prohibited from inquiring about an applicant’s criminal history prior to an initial interview (if there is no interview, then prior to a conditional offer of employment).

Portland, OR’s “Ban the Box” Ordinance
(Portland City Code Chapter 23.10)

Effective: November 25, 2015

Applies to: Any employers within the City of Portland with 6 or more employees

Law Attributes: While the State’s law permits inquiring about an applicant’s criminal history after the initial interview, the City of Portland’s ordinance restricts this further – requiring employers to inquire after a conditional offer is extended. Like California’s laws, Portland requires employers to conduct an “individualized assessment” of the applicant’s criminal history to rescind a conditional offer of employment. Portland also bars employers from considering certain categories of criminal history, like arrests not leading to conviction.

Philadelphia, PA’s “Fair Criminal Records Screening Standards Ordinance”
(Chapter 9-3500)

Effective: 2011, with amendments in effect March 14, 2016

Applies to: All employers with at least 1 employee within the city

Law Attributes: Employers cannot ask about an applicant’s criminal background on job applications or during an interview – they can do so only after a conditional offer of employment has been made. If an employer revokes the offer of employment based on a criminal record pertinent to the job position, they must send that decision in writing (plus a copy of the employment screening report) to the applicant. The applicant will have 10 days to provide an explanation or proof that it is wrong or of rehabilitation.

Rhode Island’s Fair Employment Practices Act “Ban the Box” Amendment
(R.I.G.L. 28-5-7(7))

Effective: January 1, 2014

Applies to: All employers with 4 or more employees

Law Attributes: This law prevents employers from asking about a job applicant’s prior arrests, changes and convictions prior to the job interview stage.

Austin, Texas’ Fair Chance Hiring Ordinance
(see ordinance and resources)

Effective: April 4, 2016

Applies to: Most private employers with 15 or more employees

Law Attributes: Austin’s “ban the box” ordinance is similar to most legislation (i.e. requires conditional acceptance prior to criminal screening and an individualized assessment if related history is found). While employers are prohibited from asking about criminal history on all rental applications, they may state in a job posting that a criminal history check will be conducted after a conditional offer is made.

Vermont’s “Ban the Box” Law
(Act 81)

Effective: July 1, 2017

Applies to: All private employers

Law Attributes: This law, like many other state-wide “ban the box laws” prohibits employers from inquiring about a prospective employee’s criminal record information on the job application form. Instead, employers must wait until a formal interview, or once a conditional offer has been extended.

Washington State’s Fair Chance Act
(Fair Chance Act, RCW chapter 49.94)

Effective: June 7, 2018

Applies to: All employers, with some exceptions

Law Attributes: The Fair Chance Act is very similar to “Ban the Box” laws passed by states before it. This law prohibits employers from inquiring verbally or in writing about an applicant’s criminal record. Existing local ordinances (like the City of Seattle’s “Ban the Box” protections) are not impacted by this law.

Seattle, WA’s “Fair Chance Employment” Ordinance
(ordinance resources)

Effective: November 1, 2013

Applies to: All employers with 1 or more employees

Law Attributes: This law prohibits employers from posting categorical exclusions from job ads (like “Felons need not apply”). It also prohibits employers from inquiring about an applicant’s criminal history or performing a criminal background check until the interview process. Be aware that this law’s name changed from “Job Assistance Ordinance” to “Fair Chance Employment” on January 16, 2016.

Reminder:
If you are a rental housing professional within the City of Seattle, the use of criminal background information for resident screening has been restricted. In effect on September 23, 2017, this ordinance prohibits (among other things) requiring/obtaining criminal record information for any rental applicant or occupant and places restrictions on the denial of an applicant with sex offender registry information. Click here for more information

Spokane, WA Ordinance  
(see ordinance)

Effective: June 14, 2018

Applies to: All employers within the city limits, regardless if employees are seasonal, contracted or are vocational.

Law Attributes: Criminal history questions are prohibited before a job interview. The City Council will not impose fines for violations of this ordinance until January 1, 2019.

The information provided on this page does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this page are for general informational purposes only. Information may not constitute the most up-to-date legal or other information. Readers should contact their attorney to obtain advice with respect to any particular legal matter.

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Becky Bower is the Content Strategist here at the CIC Blog. She holds a degree in English, with a focus in creative writing, from CSU Channel Islands. Her biggest weakness is cake and favorite superhero is Batman.

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