Ban the Box Laws by State 2026: When You Can Ask

§1The phrase "ban the box" only controls timing, not whether you can screen

The name comes from a literal checkbox: older job applications asked "have you ever been convicted of a crime?" right on the form, before a candidate's qualifications were ever reviewed. Ban-the-box laws remove that checkbox and push the criminal-history question later in the hiring process, typically to after an interview or after a conditional offer of employment, but they do not stop an employer from running a compliant background check at all. What changes is sequencing: the record gets reviewed once someone has already been evaluated on their actual qualifications, not used upfront to filter out an entire applicant pool before anyone reads a resume.

That distinction matters because the underlying population is large. More than 70 million Americans, close to one in three adults, have some kind of arrest or conviction record on file with a state or federal agency, a figure both the National Employment Law Project (NELP) and the U.S. Equal Employment Opportunity Commission cite in describing the scale of the issue [NELP; U.S. EEOC]. A hiring process that screens on the checkbox alone, before ever getting to a candidate's actual experience, removes a third of the workforce from consideration on a single, blunt data point.

§2How many states actually cover this, and who it applies to

Thirty-seven states plus the District of Columbia have adopted some form of ban-the-box or fair-chance policy, alongside more than 150 cities and counties nationwide [National Employment Law Project, "Ban the Box: U.S. Cities, Counties, and States Adopt Fair Hiring Policies"]. The large majority of that coverage, though, only reaches public-sector hiring or government contractors, not ordinary private employers. Fifteen states have gone further and mandated the removal of the conviction-history question from private-employer job applications as well: California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington [NELP]. Texas joined this list after NELP's own guide was last updated: House Bill 2466, effective September 1, 2025, bars employers with 15 or more employees from asking about an applicant's criminal history until the applicant has been found qualified, offered an interview, or given a conditional job offer [Texas H.B. 2466, 89th Legislature]. That puts the real count at sixteen states as of this writing, not the fifteen still listed on NELP's own page.

Local ordinances add a second layer independent of state law. NELP counts 22 cities and counties, including New York City, Los Angeles, San Francisco, Chicago, Philadelphia, Portland, Seattle, Buffalo, Rochester, and Austin, that extend their own fair-chance rules to private employers within their borders, on top of whatever the state does or doesn't require [NELP]. Tallying the population covered by any combination of these state and local policies, NELP estimates more than 267 million people, over four-fifths of the U.S. population, live somewhere with some form of ban-the-box coverage. For a company hiring outside one of the 16 states above, checking the specific city or county is still worth the ten minutes, since New York State has no statewide private-sector law but New York City has one of the most detailed ordinances in the country, and the same split shows up in several other states.

§3Quick reference: which states cover private employers

This covers the 16 states with statewide private-sector coverage plus New York, a frequently-asked-about exception, not all fifty. If your state isn't listed here as a private-employer state, that doesn't automatically mean you're in the clear; check the specific city or county where you're hiring before assuming no rule applies.

§4California's Fair Chance Act: what the five-employee threshold actually requires

California's law is one of the most detailed on the books, and it's worth reading closely because several other states borrowed a similar structure. Effective January 1, 2018, Government Code Section 12952 makes it an unlawful employment practice for an employer with five or more employees to ask about conviction history on an application before making a conditional offer, or to inquire into or consider conviction history at all before that offer goes out [Cal. Gov. Code § 12952(a)(1)-(2)]. The same section separately bars an employer from considering an arrest that didn't lead to a conviction, participation in a pretrial or posttrial diversion program, or a conviction that's been sealed, dismissed, expunged, or pardoned, regardless of when in the process it turns up [Cal. Gov. Code § 12952(a)(3)].

If a conviction does surface after a conditional offer and the employer wants to act on it, the statute lays out a specific sequence, not a single yes-or-no decision. The employer first has to run an individualized assessment weighing the nature and gravity of the offense, how much time has passed since the offense and the completion of any sentence, and the nature of the job itself [Cal. Gov. Code § 12952(c)(1)(A)]. If that assessment leads to a preliminary decision to rescind the offer, the applicant gets a written notice naming the disqualifying conviction, a copy of the background check report, and an explanation of the right to respond, and then at least five business days to respond before the decision becomes final, extended to ten business days if the applicant is actively disputing the accuracy of the report [Cal. Gov. Code § 12952(c)(2)-(3)]. Skipping straight from a hit on a background check to a rescinded offer, without that written notice and response window, is the part of the law that trips up employers who've otherwise removed the checkbox correctly.

§5New York City's Fair Chance Act: a similar two-step process at the local level

New York State has no statewide private-sector ban-the-box law, but New York City has run one of the country's most developed local versions since the Fair Chance Act was added to the NYC Human Rights Law on October 27, 2015. It applies to employers with four or more employees and makes it unlawful to inquire about or consider an applicant's criminal history before extending a conditional offer of employment [NYC Commission on Human Rights, "Legal Enforcement Guidance on the Fair Chance Act"]. Local Law 4, effective July 29, 2021, expanded the protections further, adding coverage for unsealed violations and non-criminal offenses and extending the law to reach current employees and pending criminal cases, not just pre-employment convictions [NYC CCHR].

When an employer wants to withdraw a conditional offer based on a record, NYC requires what the Commission calls the Fair Chance Process: disclose to the applicant a complete written copy of whatever criminal-history information was relied on, share a written copy of the individualized assessment against the relevant factors, and give the applicant a reasonable period of at least five business days from receipt to respond before finalizing the decision [NYC CCHR]. The factors themselves track closely with California's: the specific duties of the job, how directly the offense bears on the person's fitness for those duties, the seriousness of the offense, how much time has passed, and any evidence of rehabilitation the applicant offers [NYC CCHR]. A national employer that has already built California's process into its offer-letter workflow is most of the way to NYC compliance already, the notice-and-response mechanics are close enough that the same internal process can usually be adapted, not built again from scratch.

§6Why the "individualized assessment" language keeps showing up everywhere

The same three factors, the nature of the offense, how much time has passed, and the nature of the job, appear in California's statute, in NYC's guidance, and in the U.S. Equal Employment Opportunity Commission's 2012 enforcement guidance on the use of arrest and conviction records in employment decisions, which directs employers toward a targeted, job-related screen instead of a blanket exclusion [U.S. EEOC enforcement guidance]. That convergence isn't a coincidence: state and local lawmakers writing ban-the-box statutes over the past decade have generally built on the EEOC's existing framework rather than inventing a separate standard, which is why an employer that gets comfortable running this assessment correctly in one covered jurisdiction usually finds the same underlying logic works, with different notice periods and paperwork, in the others. Washington is the newest state to join this pattern: House Bill 1747, signed in 2025, adds a conditional-offer-first rule and its own notice-and-response process to the state's existing Fair Chance Act, phasing in July 1, 2026 for employers with 15 or more workers and January 1, 2027 for smaller ones [Wash. HB 1747, Chapter 71, 2025 Laws].

The practical upshot for a hiring manager is that a categorical policy, anything like "we don't hire anyone with a felony conviction" applied automatically to every role, is exactly the pattern these laws and the EEOC's guidance are both aimed at. A warehouse role and a role handling client funds carry a different answer to "does this conviction relate to the job," and a policy that doesn't leave room for that distinction is the one most likely to draw a complaint even in a state that hasn't formally adopted ban-the-box for private employers, since a blanket criminal-history exclusion can separately raise a disparate-impact concern under Title VII regardless of any state ban-the-box statute.

§7Building this into an actual hiring workflow

The template fix is the easy part: pull the conviction-history question off every application, everywhere, and don't bring it back for a state that happens not to require it. The harder part is the back half of the process, the individualized assessment, the written notice, and the response window, which only gets triggered occasionally, when a background check actually comes back with something, which makes it easy for a small HR team to forget the specific steps between the times it comes up. Building the notice template and the response-tracking step into the same onboarding software you already use for offer letters, rather than treating it as a one-off manual process each time, is what keeps a rare event from turning into a missed deadline; see our roundup of onboarding platforms for options with configurable, state-aware offer workflows.

This is one piece of a company's broader worker-classification and compliance calendar, not a substitute for it. A role that ends up structured as a contractor rather than an employee raises its own separate set of tests, covered in our independent contractor vs. employee test guide, and the same annual-update discipline that catches a state's changing minimum wage or exempt-salary threshold, covered in our annual compliance calendar, is the right place to also re-check whether a new hiring location has picked up its own city or county ban-the-box ordinance since the last review.

§8Frequently asked questions

Does ban the box mean an employer can never ask about or use a criminal record? No, it only changes when that question can be asked. A properly conducted background screen is still allowed, and a company can still decide not to move forward with someone over a conviction. The requirement, under the state and local rules covered above, is to delay the inquiry until later in the process and to walk through the documented assessment steps once a record actually surfaces, before acting on it.

My state doesn't force ordinary employers to drop the conviction question. Am I free to ask about criminal history on the application? At the state level, generally yes, but look at the exact city or county rule before ruling anything out. Roughly two dozen local governments layer a fair-chance rule reaching ordinary employers beyond whatever baseline the state itself sets, per NELP's tally, and several of the biggest hiring markets in the country are on that list, New York City among them. Federal contractors face a separate requirement of their own: the Fair Chance to Compete for Jobs Act of 2019, part of that year's National Defense Authorization Act, took effect in December 2021 and keeps most federal agencies and contractors from raising the topic of a criminal record until the job has already been conditionally offered [NELP, citing Public Law 116-92].

What specifically counts as "conviction history" that a covered employer can't ask about upfront? Under California's law, the restriction reaches ordinary convictions, but it goes further for three narrower categories a covered employer can't factor in at any stage of hiring: an arrest that never resulted in a conviction, time spent in a diversion program before or after a trial concluded, and a conviction later cleared through a dismissal, expungement, seal, or pardon. Other states and cities draw a similar line, though the exact list of excluded record types isn't identical everywhere, so confirm the exact rule for that jurisdiction before assuming it matches California's.

Can a covered employer still reject someone over a conviction discovered once the applicant is already past the conditional-offer stage? Yes. Both California and New York City allow it, but only through a documented sequence: the employer has to weigh the offense itself, however long it's been since the offense occurred, and what the role itself actually calls for, then put the concern in writing and hold the decision open for a window of no fewer than 5 business days so the applicant has a real chance to weigh in. Moving directly from a positive background-check result to a withdrawn offer, without pausing for that response window, counts as a process failure on its own, even in a case where rejecting the candidate would otherwise have been a lawful outcome.

Does a company with locations in multiple states need a different application form for each one? Most multistate employers solve the easy half of this the same way everywhere: no application, in any state, asks about a criminal record upfront, and that costs nothing to apply universally. What still has to stay jurisdiction-specific is everything downstream of that first step: the exact notice wording, how many business days an applicant is given to weigh in, and the employee-count threshold that triggers coverage in the first place, which, per the state and city rules discussed earlier, differ enough between a five-employee trigger and a four-employee trigger that a single national template can't fully cover both without a location-specific branch built in.

Is there a lookback period that limits how far back a covered employer can consider a conviction? Some state and local fair-chance laws set an explicit lookback limit on older or lower-level convictions, but neither California's law nor New York City's law works that way. Both treat the passage of time as one factor inside that same assessment, not as a fixed cutoff date after which a conviction becomes off-limits. An employer relying on an assumed lookback window should confirm the actual statute for that specific jurisdiction, since the assumption doesn't hold everywhere.