All U.S. jurisdictions need to comply with the guidelines established by the Fair Credit Reporting Act or FCRA. In addition to federal guidelines on background checks, an employer has to be cognizant of state laws as to when they can run a background check on you and what checks they can run or what questions they can ask.
For instance, as of 2020, more than 35 states and around 150 local jurisdictions in the U.S. have what’s called “ban-the-box” laws in place. While 35 states have put in place statewide guidelines applicable to state or local government and public agency employment, 14 states — California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington — have stated that private employers in those states cannot ask about arrest or conviction history on job applications. .
Note: These guidelines do not prevent employers from asking about your arrest or conviction record but do prevent them from asking until a certain stage in the employment process. This could be after the first interview, or only after you receive a conditional offer of employment.
This is so a candidate can be assessed first based on his or her qualifications for the role, without any potential bias. They do not prevent an employer from conducting post employment criminal background checks.
However, when you use consumer reports to make employment decisions, including hiring, retention, promotion or reassignment, you must comply with the FCRA. The Federal Trade Commission (FTC) enforces the FCRA. You can read Biometrica’s detailed section on the FCRA here. This page gives you links to state and local jurisdictional guidelines on consumer rights and reports.
Alabaman consumers need to look to the Federal Trade Commission’s Fair Credit Reporting Act (FCRA), 15 U. S. C. § 1681 et seq.
Birmingham, AL: The city of Birmingham is an exception. In 2016, it. became the first city in Alabama to “Ban the Box” on its hiring applications, a move aimed at helping ex-offenders find jobs and decrease the likelihood that they would return to prison.
In November 2017, Arizona Gov. Doug Ducey signed Executive Order 2017-7, which banned specific state agencies from questioning job applicants about their criminal records, or inquiring into an applicant’s arrest or conviction history until after an initial interview. There are exceptions for positions for which state or federal law prohibits a person from holding a job because of a certain past offense. State government employers can check a job applicant’s criminal record —after an initial interview. This order does not apply to private Arizona employers.
Maricopa County, AZ: In December 2017, the Maricopa County Board of Supervisors followed suit by passing HR2435, which barred county agencies from asking applicants about past criminal convictions upfront, but keeping the background investigation requirement for after a conditional job offer was made or the applicant was a finalist in the interview. Pima County has a similar rule in place for county agencies, while the city of Tucson allows background checks only for some city government positions. Glendale, Phoenix and Tempe all have ban-the-box laws for city employees. Notably, none of. them have these rules in place for private employers.
Arkansan consumers need to look to the Federal Trade Commission’s Fair Credit Reporting Act (FCRA), 15 U. S. C. § 1681 et seq.
Pulaski County, AR: Pulaski County, with Little Rock as its county seat, bans county employers from asking job applicants from asking about criminal history till a conditional job offer has been made.
California has the country’s strictest and most comprehensive consumer privacy and data protection rules. The California Fair Chance Act (CFCA) (Assembly Bill No. 1008), which became effective Jan. 1, 2018, added a new section to the Fair Employment and Housing Act (Government Code § 12952) making it illegal for most employers in California to ask about the criminal record of job applicants before making a job offer. This means ads, job applications, and interview questions cannot include inquiries into an applicant’s criminal record. The purpose of the law is to allow applicants to be judged based on their qualifications. They can, however, run background checks post making an offer but require to inform applicants or employees of the same and receive their assent.
The CCPA or the California Consumer Privacy Act of 2018 gives California consumers, including employees, more control over the personal information that businesses collect about them and the CCPA regulations provide guidance on how to implement the law. This includes:
- The right to know about the personal information a business collects about them and how it is used and shared;
- The right to delete personal information collected from them (with some exceptions);
- The right to opt-out of the sale of their personal information; and
- The right to non-discrimination for exercising their CCPA rights.
In November 2020, California voters passed Proposition 24 — or the California Privacy Rights Act (CPRA). Many mandates under the CPRA related to employee and applicant data will take effect on Jan. 1, 2023, with a 12-month “look-back” provision. Note: None of this means employers cannot run criminal background checks on applicants, depending on the job requirements, or background check employees; it just means they cannot run checks on applicants prior to making a conditional offer and have to take permission from employees prior to running background checks, let them know what data is being collected, and maintain records on the same.
Local jurisdictions, CA: Alameda and Santa Clara Counties, and the cities of Berkeley, Carson, Compton, East Palo Alto, Oakland, Pasadena, Richmond and Sacramento have ban-the-box rules in place for public employers. The cities of Los Angeles and San Francisco, in addition, also have ban-the-box laws (for job applicants) in place for private employers.
The Colorado Chance to Compete Act, signed in 2019, and applicable to all employers, public and private, from Sept. 1, 2021, prohibits employers with 11 or more employees from:
- Stating in an advertisement or on an application for a position of employment that a person with a criminal history may not apply for the position;
- Inquiring into an applicant’s criminal history on an initial application for a position of employment; or
- Requiring the disclosure of an applicant’s criminal history on an initial application for a position of employment.
There are exceptions, however, like when federal, state, or local laws or regulations exist that prohibit employing a person with a
specific criminal history to a particular position, or when an employer is required by federal, state, or local law or regulation to conduct a criminal history record check for that position.
Does the Colorado law restrict employers from conducting a background check on applicants?
No. An employer may obtain the publicly available criminal background report of an applicant at any time.
Do employers have to hire candidates with criminal records?
No, this law does not require employers to hire candidates with criminal records.
Denver, CO: Interestingly, the City of Denver pared back and updated a 2016 Executive Order 135, on “The Use of Background Checks in Hiring and Employment Decisions.” Originally, Sections 3.1.7 and 3.1.8 of Executive Order No. 135 limited city agency consideration of arrests and required agencies to consider (i) the nature of the conviction, (ii) existence of a “strong correlation” between the conviction and job sought, (iii) the number of convictions, (iv) the recentness of convictions, and (v) any evidence of rehabilitation.
However, in 2018, a new Executive Order was signed, which canceled the previous order, and seemingly in a turnabout, stressed that “City employees are in a position of public trust … and in order to prevent unknowingly employing someone who may present a high risk for impropriety, misconduct, malfeasance, or criminal conduct, City agencies are required to conduct appropriate background checks on all people working for the City…” It went a step further too, emphasizing that “Background checks may be conducted as frequently as necessary, within reason, to maintain the integrity of the workforce.” Do read the quite fascinating Denver Executive Order.
The 2016 Connecticut House Bill 05237, called “An Act Concerning Fair Chance Employment,” and signed into law in June of that year (amended in Jan. 2017), was written to prevent employers from requiring certain employees or prospective employees to disclose any criminal history until the employer had made a conditional offer of employment to such employee or prospective employee, and to ensure that any expunged records would not be part of, or considered in, employment.
It stated, among other things, that “No employer shall inquire about a prospective employee’s prior arrests, criminal charges or convictions on an initial employment application, unless (1) the employer is required to do so by an applicable state or federal law, or (2) a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment.”
Local jurisdictions, CT: The towns of Bridgeport, Hartford, New Haven and Norwich also all have ban-the-box laws in place for public employers, not applicable to the private sector.
Delaware’s 2014 House Bill 167 prohibited a public employer from inquiring into or considering the criminal record, criminal history or credit history or score of an applicant before it makes a conditional offer. It would permit inquiry and consideration of criminal background after the conditional offer has been made. The bill specified that once a background check is conducted, an employer should only consider felonies for 10 years from the completion of sentence, and misdemeanors for 5 years from the completion of sentence.
Local jurisdictions, DE: The city of Wilmington and New Castle County both also have ban-the-box laws in place for public employers.
District of Columbia
In 2014, the District of Columbia Council enacted the Fair Criminal Record Screening Amendment Act of 2014 (FCRSA, the Act), which went into effect on December 17, 2014. This law is popularly known as “Ban the Box” and generally, it prohibits employers in the District from inquiring about job applicants’ arrest record, charges, or convictions prior to a conditional offer of employment. What is interesting about the Washington, DC, law though, is that even once a conditional offer of employment has been extended, employers may
ask ONLY about criminal convictions.
Further, once a conditional offer of employment has been made, employers may only withdraw the offer of employment or take adverse action after considering various factors – such as how close in time the conviction was, how old the applicant was when the offense occurred, and the duties of the job, and such action or decision must be based on a legitimate business reason. While the provisions apply to public and private DC employers, there are exceptions for federal employees, AND for those working in positions that engage with, or provide services to, minors and vulnerable adults.
Florida consumers need to look to the Federal Trade Commission’s Fair Credit Reporting Act (FCRA), 15 U. S. C. § 1681 et seq., for protections.
Local jurisdictions, FL: However, several local jurisdictions have enacted ban-the-box laws for public (or city/county) agencies. These include Broward County and Miami-Dade County, and the cities of Clearwater, Daytona Beach, Gainesville, Fort Myers, Jacksonville, Orlando, Pompano Beach, Sarasota, St. Petersburg, Tampa and Tallahassee. No restriction applies to private employers or public agency vendor.
In February 2015, then Georgia Gov. Nathan Deal signed an Executive Order implementing “Ban-The-Box” hiring polices for state employees, saying that a 2014 commission recognized that disclosing convictions on initial employment applications “creates a barrier to employment.” The order prohibited the use of a criminal record as an automatic bar to employment with a public agency, with an exception for “sensitive governmental positions.”
Local jurisdictions, GA: The counties of Cherokee, Fulton and Macon-Bibb have all enacted ban-the-box legislation for public/city agencies, as have the cities of Albany, Atlanta, Augusta, Columbus and Savannah. The city of South Fulton, alone, has also extended ban-the-box laws to public agency vendors. None of these rules or laws apply to private employers.
In 1998, Hawaii became one of the first states to create its version of a ban-the-box law, to prevent discrimination in job applications. In December 2020, it. further tightened its laws, with HB 1782 stating, “Unfortunately, Hawaii’s current ban-the-box law, and specifically its 10-year conviction record ‘look back’ exception, may continue to facilitate employment discrimination against individuals who have a criminal history, but who have long since paid their debt to society, and who pose little to no risk to an employer or the public.”
Hawaii House Bill 1782 applies to public and private employers and vendors, and explicitly states that the “purpose of this Act is to limit the convictions that may be used in employment decisions from all convictions in the most recent 10 years to felony convictions that occurred in the most recent five years and misdemeanor convictions that occurred in the most recent three years.” It adds, however: “This Act is not intended to amend or affect existing exceptions that explicitly allow the use of criminal history-related records for certain occupations (such as department of education employees) and specific circumstances (such as sex offender registration).”
In July 2014, Illinois passed the Job Opportunities for Qualified Applicants Act, by which an employer or employment agency could not inquire about or into, consider, or require disclosure of the criminal record or criminal history of an applicant until the applicant had been determined qualified for a position and been notified that they had been selected for an interview by the employer or employment agency or, if there is not an interview, until after a conditional offer of employment was made to the applicant by the employer or employment agency.
There were exceptions for certain positions, and while the law applied to public and private Illinois employers, it did not prohibit an employer from notifying applicants in writing of the specific offenses that would disqualify an applicant from employment in a particular position due to federal or State law OR the employer’s policy.
Chicago, IL: Four months later, the City of Chicago passed the Chicago Municipal Ordinance 2-160-054. It stated that a criminal conviction, standing alone, could not disqualify an applicant from employment, if a conditional job offer had already been made. The Ordinance mandated employers take the following factors into consideration:
- The nature of the specific offense or offenses.
- The nature of the sentence imposed.
- The applicant’s number of convictions.
- The length of time that has passed since the applicant’s most recent conviction.
- The relationship between the nature of applicant’s crimes and the nature of the relevant position.
- The age of the applicant at the time of his most recent conviction.
- Any evidence of rehabilitation, including, but not limited to, whether the applicant has completed a treatment or counseling program or received a certification of relief from disabilities or good conduct.
- The extent to which the applicant has been open, honest, and cooperative in examining his background.
- Any other information relevant to the applicant’s suitability for the relevant position.
Finally, the Ordinance required that if an employer made a decision not to hire an applicant, based in whole or in part on the applicant’s criminal history, the employer had to let the applicant know of this basis at the time he or she was informed of the decision.
In April 2017, Indiana Gov. Eric Holcomb signed into law Public Law 210 (Senate Bill. 312), which banned city or local governments from enacting rules that restricted private employers from accessing a job applicant’s criminal history. This Act effectively banned the City of Indianapolis’s existing ban-the-box legislation.
However, on June 29, 2017, the Indiana governor signed, through Executive Order 17-15, the Fair Chance Hiring Process ordinance, a minor concession. Gov. Holcomb stated, ““While I do not believe governments should dictate employers’ hiring processes, I believe everyone deserves a second chance…” From July 1, 2017, he said the state of Indiana would no longer ask applicants for employment in the executive branch if they had been arrested or convicted of a crime.
The state would continue to conduct background checks on applicants during the hiring process, and applicants for jobs where state law specifically prohibited employment based on certain convictions or pending charges, would continue to be asked about their criminal records.
Iowa consumers need to look to the Federal Trade Commission’s Fair Credit Reporting Act (FCRA), 15 U. S. C. § 1681 et seq., for protections.
Local jurisdictions, IA: The counties of Johnson and Linn, and the city of Waterloo all have laws in place for public employers, with Waterloo also putting ban-the-box laws in place for private employers.
In May 2018, Kansas Gov. Jeff Colyer issued Executive Order 18-12, with regard to state employment practices. The order instructed all Executive Branch departments, agencies, boards, and commissions under the jurisdiction of the Office of the Governor to ensure that job applicants were not asked about their criminal record during the initial stage of a state employment application.
The order does not prevent employers from conducting criminal background checks or from excluding such applicants if a law or regulation prohibits those with criminal records from holding that specific position.
Local jurisdictions, KS: Johnson County, and the cities of Wichita, Topeka and Kansas City, all enacted ban-the-box legislation.
(Work in Progress)