Ban the Box Laws: A 2026 Employer Compliance Guide

What "Ban the Box" Actually Means

"Ban the box" refers to removing the checkbox on job applications that asks candidates to disclose a criminal conviction or arrest history. The policy movement, which grew out of the All of Us or None advocacy campaign, is built on a simple idea: employers should evaluate a candidate's qualifications first, before criminal history enters the picture.

In practice, most ban the box and "fair chance hiring" laws do three things:

• Remove conviction/arrest history questions from the initial job application
• Delay any criminal history inquiry or background check until later in the hiring process — commonly after an interview or after a conditional job offer
• Require an individualized assessment before denying employment based on a criminal record, rather than a blanket disqualification

According to the National Employment Law Project (NELP), 37 states have adopted some form of statewide fair-chance policy (most originally for public-sector hiring), and more than 150 cities and counties have their own local ordinances. NELP estimates over 267 million people — more than four-fifths of the U.S. population — now live in a jurisdiction with some ban the box or fair chance policy on the books.

Which States and Cities Restrict Private Employers

Not every ban the box law reaches private-sector employers — many of the earliest laws applied only to public agencies. But a growing subset of states has extended fair-chance requirements to private employers directly. Per NELP's tracker, at least fifteen states currently mandate removal of conviction-history questions from private-sector job applications: California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. NELP also counts roughly 22 additional cities and counties that extend local fair-chance protections to private employers within their borders.

Because this list changes as new laws pass and existing ones are amended, treat any static list — including this one — as a starting point, not a final answer. NELP's state and local guide is updated regularly and is the most reliable single source for current jurisdiction-by-jurisdiction coverage.

The Federal Fair Chance to Compete for Jobs Act

Federal agencies and contractors have their own version of ban the box. The Fair Chance to Compete for Jobs Act of 2019, enacted as part of the FY2020 NDAA, bars federal agencies — and contractors acting on an agency's behalf — from requesting criminal history information from an applicant before extending a conditional offer of employment. OPM's implementing regulations (5 CFR Part 920) took effect October 2, 2023. This law applies specifically to federal hiring and federal contract positions, not to private employers generally.

How Fair Chance Laws Work in Practice: Two Examples

Because the mechanics differ from state to state, it helps to look closely at two well-documented laws: California's statewide Fair Chance Act and New York City's Fair Chance Act. Both illustrate the pattern most fair-chance laws follow, even though the details differ.

California's Fair Chance Act

California's Fair Chance Act (originally AB 1008), effective January 1, 2018, requires most employers with five or more employees to remove conviction history questions from job applications and wait until after a conditional offer of employment to inquire about or run a check for criminal history. Per California's Civil Rights Department (CRD) and NELP's summary, if an employer wants to deny employment based on what turns up, it must first conduct an individualized assessment weighing:

• The nature and gravity of the offense or conduct
• The time that has passed since the offense and completion of any sentence
• The nature of the job held or sought

If the employer still intends to revoke the offer, it must notify the applicant in writing, identify the disqualifying conviction(s), and give the applicant at least five business days to respond with evidence of inaccuracy, rehabilitation, or mitigating circumstances before finalizing the decision.

New York City's Fair Chance Act

New York City's Fair Chance Act, enforced by the NYC Commission on Human Rights, prohibits employers from asking about or considering an applicant's conviction history or pending criminal cases until after a conditional offer of employment has been made. Amendments effective July 29, 2021 went further, requiring employers to run background checks in two stages — a non-criminal check first, and only after a conditional offer, a separate criminal history check.

If an employer is considering rescinding an offer based on criminal history, NYC's law requires the employer to evaluate the record against the city's "Fair Chance Factors," share a written copy of that analysis with the applicant along with any background check report used, and hold the position open for at least five business days so the applicant can respond — mirroring the same notice-and-response structure found in California and in FCRA's own adverse action process.

How Ban the Box Interacts with FCRA

Ban the box laws and the Fair Credit Reporting Act (FCRA) regulate different things, and employers sometimes assume complying with one covers the other. It doesn't.

• FCRA governs the background check itself — you must get written authorization before pulling a report, use an FCRA-compliant consumer reporting agency, and follow the two-step adverse action process (pre-adverse action notice with a copy of the report and a summary of rights, a waiting period, then a final adverse action notice) if you plan to deny employment based on what the report shows.
• Ban the box laws govern the timing and application-stage questions — they restrict when in the hiring process you may ask about or act on criminal history, independent of how the report itself is obtained.
• The EEOC's Title VII guidance layers on top of both — under its 2012 enforcement guidance, a blanket policy excluding anyone with a criminal record can violate Title VII if it has a disparate impact on a protected class and isn't job-related and consistent with business necessity, even in states with no ban the box law at all.

In a state or city with fair-chance requirements, a compliant hiring sequence generally looks like this:

• 1. Post the job and accept applications with no criminal history question on the application itself
• 2. Interview and evaluate candidates on qualifications alone
• 3. Extend a conditional offer of employment
• 4. Obtain FCRA authorization and run the background check
• 5. If a disqualifying record surfaces, conduct the individualized assessment required by the applicable fair-chance law
• 6. Send the FCRA pre-adverse action notice (report copy + summary of rights) and, where required, the fair-chance-specific written notice — many employers combine these into one packet
• 7. Hold the position open for the required waiting period (5 business days is common under both FCRA best practice and several fair-chance laws)
• 8. If proceeding with denial, send the final adverse action notice

Compliance Best Practices for Employers

Because ban the box coverage is a patchwork of state and local rules that change often, the safest approach is procedural: build a hiring process that satisfies the strictest law you're subject to, and apply it consistently.

• Audit every jurisdiction where you hire. Check state law, plus any city or county ordinance, for every location where you post jobs or have employees — remote hiring can mean you're subject to several jurisdictions at once.
• Remove criminal history questions from applications unless you've confirmed your state and city don't restrict it.
• Move background checks to after the conditional offer as a default practice, even in jurisdictions that don't strictly require it — it reduces disparate-impact risk and simplifies training for hiring managers working across multiple locations.
• Document the individualized assessment in writing for every denial based on criminal history, even where not explicitly mandated — it's your best evidence of good-faith compliance if challenged.
• Standardize your adverse action notices to include both the FCRA-required elements and any fair-chance-specific language your jurisdiction requires.
• Train hiring managers — most ban the box violations happen because a manager asks about a record in an interview out of habit, not because of a flawed written policy.
• Recheck your jurisdiction list annually. New states and cities add fair-chance laws regularly, and existing laws are frequently amended (as NYC's was in 2021).

The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity.