Fair-Chance & Ban-the-Box Laws

Fair-chance and “ban-the-box” laws regulate how employers may obtain or use criminal-history information during the hiring process.

The phrase ban the box originally referred to removing criminal-history questions from initial employment applications. Modern fair-chance laws can go considerably further. Depending on the jurisdiction, they may regulate when an employer can ask about criminal history, when a background check can occur, what information may be considered, whether a conditional job offer must be made first, whether the employer must conduct an individualized assessment, what notices must be given, and how much time an applicant has to respond.

There is no single nationwide fair-chance rule governing every private employer.

Federal law contains fair-chance restrictions for most federal agency hiring and certain federal-contractor positions, while states and local governments may impose their own requirements on private employers. Those rules can differ substantially.

Fair-chance compliance also does not replace the Fair Credit Reporting Act. When a third-party Consumer Reporting Agency provides an employment background report, the FCRA can impose separate requirements concerning disclosure, authorization, accuracy, pre-adverse action, adverse action and disputes.

For multi-state employers, the result is a layered compliance problem:

Federal FCRA requirements + federal employment law + applicable state law + applicable local law + industry-specific requirements.

Source: U.S. Office of Personnel Management — Fair Chance Act guidance

Key Takeaways for Employers

• “Ban the box” and “fair chance” are related concepts, but modern fair-chance laws frequently regulate much more than the checkbox on an application.
• There is no single private-sector national rule that replaces state and local requirements.
• Some jurisdictions prohibit criminal-history inquiries until after a conditional offer of employment.
• Some laws prohibit employers from considering particular categories of criminal-history information.
• Some jurisdictions require individualized assessment before an employer can withdraw a conditional offer.
• State and local notice requirements can go beyond federal FCRA pre-adverse action.
• The timing requirements in one city or state should not be assumed to apply everywhere.
• FCRA compliance and fair-chance compliance are separate but overlapping workflows.
• The CRA can support the process, but the employer remains responsible for its hiring decision.
• Multi-state employers should design jurisdiction-aware workflows rather than relying on one universal national process.

1. What Does “Ban the Box” Mean?

Historically, “ban the box” referred to eliminating the checkbox on an employment application asking whether an applicant had a criminal conviction.

The concept is straightforward: instead of screening someone out at the beginning of the hiring process based on criminal history, the employer first evaluates the person’s qualifications.

Criminal history is considered later, if legally appropriate.

Many modern laws have evolved beyond the application itself. They may also prohibit:

• asking about criminal history during interviews;
• conducting a criminal background check too early;
• searching public records before a specified stage;
• stating in job advertisements that applicants with criminal histories will automatically be excluded;
• considering certain arrests or non-convictions;
• automatically excluding applicants based on conviction history; or
• taking adverse action without additional review.

California, for example, generally prohibits covered employers from asking about or considering conviction history before a conditional offer is made.

Source: California Civil Rights Department — Fair Chance Act

New York City similarly prohibits most covered employers from seeking or considering an applicant’s criminal conviction history before extending a conditional offer.

Source: NYC Commission on Human Rights — Fair Chance Act legal guidance

2. “Ban the Box” and “Fair Chance” Are Not Exactly the Same Thing

The terms are often used interchangeably, but it is useful to distinguish them.

Ban the box primarily describes the timing of criminal-history inquiries. Fair chance is broader.

A fair-chance framework may regulate:

• timing;
• what criminal information can be considered;
• whether an individualized assessment is required;
• how conviction history relates to the job;
• applicant notice;
• rehabilitation or mitigating evidence;
• dispute opportunities;
• waiting periods;
• reconsideration; and
• final decision notices.

For that reason, simply removing a criminal-history question from the employment application does not necessarily make an employer compliant with a modern fair-chance law.

3. Is There a Federal Ban-the-Box Law?

There is a federal fair-chance law, but its scope should be understood correctly.

The Fair Chance to Compete for Jobs Act of 2019 generally restricts federal agencies from making criminal-history inquiries before a conditional offer of employment, subject to exceptions. Current OPM guidance continues to instruct covered federal hiring processes not to inquire into criminal history before the conditional offer stage.

Source: U.S. Office of Personnel Management — Fair Chance Act guidance

Federal law also addresses certain federal contractors. Under 41 U.S.C. § 4714, contractors generally may not request criminal-history information from applicants for positions related to covered federal contract work before extending a conditional offer, subject to statutory exceptions.

Source: 41 U.S.C. § 4714 — Criminal history inquiries by covered federal contractors

Those federal rules do not create one universal ban-the-box rule governing every private employer in the United States. Private employers must still determine which state and local laws apply where they recruit and employ workers.

4. Why State and Local Laws Matter So Much

Fair-chance regulation has developed largely through state and local laws. As a result, employers can encounter different rules depending on:

• where the applicant lives;
• where the job is located;
• where the employer operates;
• employer size;
• whether the employer is public or private;
• whether the position is regulated;
• whether another law requires criminal screening; and
• the type of criminal information involved.

One jurisdiction may prohibit criminal inquiries on the application. Another may require waiting until a conditional offer. Another may require an individualized assessment. Another may require specific notices and response periods. Some may do all of those things.

This is why multi-state employers should not assume that one national workflow satisfies every jurisdiction.

The Conditional Offer Has Become a Critical Compliance Point

Many fair-chance laws use the conditional offer of employment as the dividing line.

Before the conditional offer: evaluate whether the candidate is qualified for the job. After the conditional offer: conduct the criminal-history inquiry or background screening where legally permitted.

This sequencing is designed to separate the employer’s evaluation of qualifications from consideration of criminal history.

California’s current Fair Chance Act guidance generally prohibits covered employers from asking about or considering criminal history before a conditional offer.

Source: California Civil Rights Department — Fair Chance Act

New York City likewise generally requires employers subject to its Fair Chance Act to wait until after a conditional offer before seeking conviction history.

Source: NYC Commission on Human Rights — Fair Chance Act legal guidance

The practical consequence is significant for recruiting technology. An ATS workflow that automatically launches the criminal background check before the legally required stage can create a compliance problem even if the background report itself is accurate.

6. Fair-Chance Compliance Starts Before the Background Check

Employers sometimes think fair-chance requirements begin when a criminal record is found. They can begin much earlier.

Employers should examine:

• job advertisements;
• employment applications;
• recruiter scripts;
• interview questions;
• ATS workflows;
• application forms;
• authorization timing;
• background-check triggers;
• hiring-manager training; and
• automated hiring rules.

A prohibited inquiry made verbally during an interview can be just as significant as one printed on an application.

New York City’s current guidance defines criminal-history inquiry broadly enough to include oral or written questions and searches conducted through third parties such as CRAs.

Source: NYC Commission on Human Rights — Fair Chance Act legal guidance

7. Job Advertisements Can Matter Too

Some fair-chance laws also regulate recruiting language. An employer should be cautious about blanket advertisements such as:

“No felons.” | “Clean criminal record required.”

Those statements can be problematic where applicable law requires later consideration of criminal history, prohibits blanket exclusions, or requires individualized review.

California guidance, for example, identifies employer statements suggesting that criminal history will automatically disqualify applicants as inconsistent with the state’s fair-chance framework before the proper assessment occurs.

Source: California Civil Rights Department — Fair Chance Act

A better job advertisement should focus on job responsibilities, qualifications, licensing requirements, regulatory requirements, safety-sensitive duties and legitimate job-related criteria.

8. What Happens After the Conditional Offer?

A conditional offer does not necessarily give the employer unrestricted authority to consider every criminal-history record it can find.

Applicable law may still regulate:

• which records are legally usable;
• how those records are evaluated;
• what relationship must exist between the conviction and the position;
• whether the applicant receives an assessment;
• what response opportunity must be provided; and
• how a final decision is documented.

The conditional offer is therefore often the beginning of the criminal-history evaluation stage, not the end of the employer’s compliance obligations.

9. What Is an Individualized Assessment?

An individualized assessment evaluates the person’s actual criminal history in relation to the particular job instead of applying a blanket exclusion.

A typical assessment may consider factors such as:

• the nature or gravity of the conduct;
• how much time has passed;
• the nature and responsibilities of the position;
• evidence of rehabilitation;
• mitigating circumstances;
• work history;
• educational or training accomplishments;
• circumstances surrounding the conduct; and
• other information permitted or required by applicable law.

The exact required factors depend on the jurisdiction.

California’s Fair Chance Act framework requires covered employers considering withdrawing a conditional offer because of conviction history to assess factors including the nature and gravity of the conduct, the time that has passed, and the nature of the job.

Source: California CRD — Fair Chance Act sample forms packet

10. Individualized Assessment Is Different From FCRA Pre-Adverse Action

These processes can overlap, but they are not the same thing.

FCRA pre-adverse action concerns the employer’s use of a third-party consumer report. Fair-chance individualized assessment concerns how criminal-history information is evaluated under applicable employment law.

An employer may therefore need to satisfy both. For example:

1. The CRA completes the background report.

2. A conviction is identified.

3. The employer conducts the required job-related individualized assessment.

4. The employer preliminarily determines that the conviction may disqualify the applicant.

5. FCRA pre-adverse-action requirements are triggered if the decision is based in whole or in part on the consumer report.

6. Additional state/local fair-chance notices or response procedures may also apply.

7. The applicant responds.

8. The employer reassesses the information.

9. The employer makes the final decision.

10. Final federal and state/local notices are provided where required.

The workflows should be coordinated rather than treated as unrelated compliance silos.

11. EEOC Guidance Adds Another Layer

Title VII is separate from the FCRA and separate from state/local fair-chance laws.

The EEOC’s current guidance explains that criminal-history practices may create unlawful disparate treatment or disparate impact under Title VII. It also distinguishes arrests from convictions.

The EEOC states that the fact of an arrest alone does not establish that criminal conduct occurred, while a conviction ordinarily provides stronger evidence that the underlying conduct occurred.

Source: EEOC — Consideration of Arrest and Conviction Records

The EEOC also recommends, as a best practice consistent with applicable law, that employers avoid asking about convictions on applications and limit inquiries to conviction information for which exclusion would be job related and consistent with business necessity. Its guidance itself states that it does not have the force and effect of law.

12. Arrests and Convictions Should Not Be Treated as Identical

This principle appears repeatedly across fair-chance and employment-law frameworks.

An arrest means a person was arrested. It does not establish that the person committed the alleged offense. A conviction has a different legal significance.

Other records can have still different statuses:

• pending cases;
• dismissals;
• acquittals;
• sealed records;
• expunged records;
• diversion;
• juvenile matters;
• deferred dispositions; and
• pardoned convictions.

Applicable law may restrict or prohibit consideration of some of these categories.

California guidance, for example, identifies arrests not followed by conviction, specified diversion information, and certain sealed, dismissed, expunged or otherwise legally eradicated convictions as information employers generally may not consider under the Fair Chance Act framework.

Source: California Civil Rights Department — Fair Chance Act

13. California: An Example of a Comprehensive State Fair-Chance Framework

California provides a useful example of how far modern fair-chance requirements can extend.

Current California Civil Rights Department guidance states that the Fair Chance Act generally applies to employers with five or more employees and restricts criminal-history inquiries before a conditional job offer.

Source: California CRD — 2026 Fair Chance Act enforcement release

After a conditional offer, a covered employer considering revoking the offer based on conviction history generally must conduct an individualized assessment.

California’s current state toolkit identifies factors including:

• the nature and seriousness of the conduct;
• the amount of time that has passed; and
• the nature and duties of the job.

Source: California CRD — Fair Chance Act sample forms packet

If the employer preliminarily intends to revoke the offer, the current CRD process provides for written notice, a copy of the conviction-history report, an opportunity to provide rehabilitation or mitigating information, and additional time when the applicant timely challenges the accuracy of the report.

The CRD’s August 2025 toolkit states that an applicant must receive at least five business days to respond, and if the applicant timely notifies the employer that the conviction report is inaccurate, the applicant receives additional time to provide evidence concerning that challenge.

California has continued enforcing these requirements in 2026, including settlements involving allegations that employers failed to conduct required individualized assessments before withdrawing conditional offers.

Source: California CRD — June 2026 enforcement release

14. New York City: An Example of a Local Fair-Chance Framework

New York City demonstrates why local requirements cannot be ignored.

The city’s Fair Chance Act generally prohibits covered employers from seeking or considering an applicant’s conviction history until after a conditional offer.

Source: NYC Commission on Human Rights — Fair Chance Act legal guidance

If the employer wants to withdraw the offer because of criminal history, city guidance requires the employer to evaluate the applicant under applicable New York law, share the written analysis, provide the background information being relied upon, and provide an opportunity to respond.

Current NYC Commission on Human Rights materials state that the position must generally be held open for at least three business days after the applicant receives the required inquiry and analysis so the applicant can respond.

Source: NYC Commission on Human Rights — Fair Chance information for employees

The federal FCRA does not impose one universal five-day rule, but a particular state or city may impose its own specific response period.

15. Federal Contractors Can Have Separate Fair-Chance Obligations

Certain federal contractors face an additional federal layer.

Under 41 U.S.C. § 4714, a covered contractor generally may not request criminal-history record information from an applicant for a position related to covered federal contract work until after extending a conditional offer.

Source: 41 U.S.C. § 4714

The statute includes exceptions, including circumstances where:

• another law requires earlier consideration;
• classified information is involved;
• sensitive law-enforcement or national-security duties are involved; or
• another designated exception applies.

An employer that performs federal contract work should therefore determine whether both federal-contractor fair-chance requirements and state/local fair-chance requirements apply to the position.

16. Some Positions Are Exempt

Fair-chance laws frequently contain exceptions.

Potential examples can include positions involving:

• law enforcement;
• national security;
• classified information;
• legally mandated criminal-history checks;
• particular financial responsibilities;
• regulated occupations;
• care of children or vulnerable populations; or
• other specifically exempted positions.

The existence and scope of an exemption vary by law.

An employer should not assume: “We work in healthcare, therefore every position is exempt.” Nor should it assume: “We are a government contractor, so fair-chance laws do not apply.” Exemptions generally need to be evaluated against the actual statute or ordinance and the specific position.

17. A Legally Required Background Check Is Not Necessarily a Blanket Exemption

Some jobs are subject to separate statutes or regulations requiring criminal-history screening. That may affect the fair-chance analysis.

But an employer should distinguish between a law requiring a particular background check and a law authorizing unrestricted consideration of every criminal record at any point in the hiring process. Those are not necessarily the same thing.

Employers should identify:

• what the underlying law actually requires;
• when the inquiry must occur;
• which offenses matter;
• whether automatic disqualification applies;
• whether waivers exist; and
• whether other fair-chance procedures still apply.

18. The CRA Needs to Know When the Criminal Search Can Be Released

Fair-chance compliance creates an operational challenge for screening providers.

Suppose an employer orders identity verification, education verification, employment verification and criminal screening. A jurisdiction may allow some portions of screening before the stage at which criminal-history information can legally be requested or considered.

The CRA and employer may therefore need workflows capable of separating components of the package. That can affect:

• order timing;
• ATS triggers;
• package configuration;
• status reporting;
• candidate invitations; and
• release of criminal-history results.

A sophisticated screening program should be able to accommodate those distinctions rather than simply launching every component automatically at the same point.

19. ATS Automation Can Create Fair-Chance Risk

Automation is useful until the automated workflow is legally wrong.

Consider an ATS configured to:

When candidate reaches “Final Interview,” automatically launch criminal background check.

That may work in one jurisdiction. It may be too early in another.

Likewise, an application template containing “Have you ever been convicted of a crime?” may be acceptable in one context and prohibited in another.

Employers should therefore audit:

• ATS stages;
• automated triggers;
• application questions;
• recruiter workflows;
• location rules;
• background-screening packages; and
• adverse-action automation.

Compliance logic should be part of workflow design.

20. Multi-State Employers Face a Configuration Problem

A company hiring in twenty states may not be able to run one identical criminal-history workflow everywhere.

Location → applicable law → permitted timing → permitted information → required assessment → required notice → response period → final decision

That is one reason ATS and screening-platform integration can become strategically important.

The system can potentially route candidates according to:

• work location;
• employer entity;
• position;
• regulated status;
• screening package;
• applicable hiring stage; and
• required local workflow.

But the legal logic first has to be designed correctly.

21. “National Policy” Can Mean a Uniform Higher Standard

Some employers address the jurisdictional patchwork by adopting a companywide policy that follows a more restrictive process even where the law does not expressly require it.

For example, an employer might choose nationally to:

• delay criminal-history checks until after a conditional offer;
• eliminate criminal-history questions from applications;
• use individualized assessment;
• provide applicants an opportunity to respond; and
• apply consistent decision criteria.

That can simplify administration. But a national policy should still be checked against individual jurisdictions because local laws can require specific forms, timing, assessment factors or notices that the employer’s uniform policy does not include.

A standardized process can establish the baseline. It may not satisfy every local overlay.

22. Individualized Assessment Should Be Documented

If a jurisdiction requires individualized assessment, employers should consider using a structured process rather than an undocumented conversation.

Documentation can help show:

• what conviction information was considered;
• which job duties were evaluated;
• the nature and seriousness of the conduct;
• how much time had passed;
• whether rehabilitation or mitigation information was considered;
• who conducted the assessment; and
• the rationale for the preliminary or final decision.

California’s current state toolkit includes formal individualized-assessment and reassessment forms, illustrating how structured documentation can support the process.

Source: California CRD — Fair Chance Act forms

Documentation should be accurate and thoughtful—not merely a checkbox exercise.

23. Mitigating and Rehabilitation Information Can Matter

Fair-chance review can include information beyond the conviction itself. Depending on applicable law, relevant information may include:

• age at the time of the conduct;
• circumstances surrounding the offense;
• time since the offense;
• subsequent work history;
• education;
• training;
• counseling;
• community involvement;
• successful completion of probation or parole;
• treatment;
• references;
• rehabilitation efforts; and
• other mitigating circumstances.

California’s current materials expressly provide applicants an opportunity to submit evidence of rehabilitation or mitigating circumstances before a preliminary offer revocation becomes final.

Source: California CRD — Fair Chance Act sample forms packet

The employer should evaluate information required by the applicable law rather than treating the response period as a formality.

24. The Applicant May Also Challenge the Accuracy of the Background Report

A fair-chance process can intersect directly with FCRA dispute rights.

Suppose the employer’s assessment concerns a conviction reported by the CRA. The applicant responds: “That case was dismissed. The background report is incorrect.”

Fair-chance process: How should the employer evaluate criminal history? | FCRA dispute process: Is the consumer report itself accurate?

The employer should not try to perform the CRA’s reinvestigation. The CRA investigates the report. The employer manages the employment decision and applicable fair-chance workflow.

25. Fair-Chance Notice Is Not Necessarily the Same as FCRA Pre-Adverse Notice

This is another common compliance mistake.

“We sent the FCRA pre-adverse letter, so we satisfied the local fair-chance law too.”

That may not be true.

A jurisdiction may require additional information such as:

• the specific conviction being considered;
• the employer’s individualized assessment;
• the relationship between the conviction and job duties;
• a local rights notice;
• particular response instructions;
• a longer response period;
• reconsideration information; or
• a written final explanation.

The FCRA and fair-chance requirements should therefore be mapped side by side.

26. Fair-Chance Compliance Does Not Mean Employers Must Ignore Legitimate Risk

Fair-chance laws do not generally mean that criminal history can never affect employment.

The purpose is typically to regulate how and when that information is considered and to reduce automatic exclusion where individualized evaluation is required.

New York City’s guidance, for example, expressly recognizes that an employer may withdraw an offer where the applicable analysis establishes the required relationship or risk; the law regulates the process leading to that decision.

Source: NYC Commission on Human Rights — Fair Chance Act legal guidance

California likewise permits covered employers to consider conviction history after the conditional-offer stage but requires the applicable assessment and notice process before revoking the offer.

Source: California Civil Rights Department — Fair Chance Act

The objective is not “Never consider criminal history.” It is “Consider legally permissible criminal history at the proper time, in the proper manner, and in relation to the job where required.”

27. Blanket Exclusion Policies Deserve Careful Review

Policies such as “Any felony = automatic rejection” or “Any theft conviction = never hire” can create problems where applicable law requires more individualized consideration.

They may also raise separate Title VII concerns depending on how the policy operates and affects applicants.

The EEOC advises employers to review criminal-history policies for job relatedness and business necessity and to give applicants an opportunity to explain criminal-history information.

Source: EEOC — Criminal Records

Employers should distinguish legitimate statutory disqualifications from broad company policies that go beyond what the law requires.

28. Recruiter and Hiring-Manager Training Is Essential

A legally compliant written policy can be undermined by one poorly trained interviewer.

A recruiter might casually ask, “So, have you ever been arrested?” A hiring manager might see criminal information on social media before the permitted stage. A manager may tell an applicant, “We don’t hire anyone with a felony.”

Fair-chance training should therefore address:

• prohibited early inquiries;
• what recruiters can say;
• what hiring managers should not investigate independently;
• when background screening can begin;
• who reviews criminal-history information;
• how decisions are escalated; and
• how applicant questions should be handled.

29. Searching Social Media or Google Can Create the Same Timing Problem

Fair-chance rules can sometimes focus on obtaining or considering criminal history, not merely ordering a formal CRA report.

That means an employer should be cautious about trying to bypass its own screening workflow by conducting informal internet searches for criminal information before the lawful stage.

New York City guidance, for example, defines a criminal background check to include searches of public records, including searches conducted through third parties.

Source: NYC Commission on Human Rights — Fair Chance Act legal guidance

“It wasn’t a formal background check, so fair-chance timing does not matter.” — Do not assume this is true.

30. Ongoing Monitoring Creates Another Fair-Chance Question

Fair-chance compliance is often discussed only in connection with applicants. But some laws can affect employment decisions involving current employees, and employers increasingly use ongoing criminal monitoring, MVR monitoring, periodic re-screening and other post-hire consumer reports.

New York City’s guidance, for example, states that its Fair Chance Act applies to employment decisions beyond initial hiring, including termination, transfer and promotion.

Source: NYC Commission on Human Rights — Fair Chance Act legal guidance

Employers using ongoing monitoring should therefore evaluate both the FCRA rules applicable to employment consumer reports and state/local criminal-history restrictions applicable to existing employees.

31. Common Fair-Chance Compliance Mistakes

Asking Too Early

The application or recruiter asks about criminal history before the legally permitted stage.

Launching the Criminal Check Automatically

The ATS triggers criminal screening before the conditional offer where local law requires waiting.

Treating the FCRA as the Entire Compliance Process

The employer follows federal pre-adverse action but misses a state/local individualized-assessment requirement.

Using a Blanket Criminal-History Policy

The employer automatically excludes candidates rather than conducting the assessment required by applicable law.

Considering Prohibited Information

The employer considers arrests, sealed records or other categories the applicable jurisdiction prohibits.

Ignoring Applicant Information

The employer allows a response period but does not meaningfully consider the information submitted.

Using the Wrong Waiting Period

The employer assumes its standard federal workflow satisfies every local timing requirement.

Failing to Train Recruiters

The written policy is correct, but managers continue asking prohibited questions.

Assuming Every Position Is Exempt

The employer relies on a broad industry label rather than confirming whether the particular job meets the statutory exception.

Allowing Automation to Override Compliance

A national ATS rule launches screening or adverse action without accounting for the candidate’s jurisdiction.

32. A Practical Multi-State Fair-Chance Workflow

Step 1 — Identify the Work Location

Determine the jurisdiction that governs the position and whether additional locations create obligations.

Step 2 — Determine Applicable Fair-Chance Rules

Identify employer-size thresholds, timing restrictions, exemptions, prohibited information, conditional-offer requirements, assessment requirements, notices and response periods.

Step 3 — Configure the Hiring Workflow

Make sure the application is compliant, recruiter scripts are appropriate, criminal screening launches at the correct stage, and ATS rules reflect jurisdiction-specific requirements.

Step 4 — Make the Conditional Offer Where Required

Document the offer and its conditions.

Step 5 — Conduct the Permitted Background Screening

The CRA performs the ordered criminal searches and other screening products.

Step 6 — Review Only Legally Permissible Information

Do not base decisions on information the applicable law prohibits the employer from considering.

Step 7 — Conduct the Required Individualized Assessment

Evaluate criminal history against job responsibilities and the factors required by applicable law.

Step 8 — Coordinate Fair-Chance and FCRA Pre-Adverse Action

Provide all federally and locally required notices and materials.

Step 9 — Provide the Required Response Opportunity

Allow the legally required time and meaningful opportunity to provide corrections, mitigating information, rehabilitation information or other permitted responses.

Step 10 — Reassess

Consider information the applicant submitted.

Step 11 — Make the Final Employer Decision

The employer—not the CRA—makes the decision.

Step 12 — Provide Required Final Notices

Complete applicable FCRA adverse action and state/local fair-chance final notice requirements.

Step 13 — Preserve Appropriate Documentation

Maintain records according to applicable retention policies and law.

33. Fair-Chance Employer Checklist

Recruiting

• Does the job advertisement contain prohibited exclusion language?
• Does the application ask criminal-history questions too early?
• Are recruiters trained not to ask prohibited questions?
• Are hiring managers instructed not to conduct informal criminal-history searches?

Timing

• When can criminal history legally be requested?
• Is a conditional offer required?
• Does the ATS wait until the correct stage?
• Are particular positions exempt?

Background Screening

• Is the CRA receiving the order at the legally appropriate time?
• Does the package include only appropriate searches?
• Can criminal screening be separated from other screening components?

Report Review

• Which records may legally be considered?
• Are arrests treated differently from convictions?
• Are sealed, expunged or other prohibited records excluded?
• Does the jurisdiction require individualized assessment?

Assessment

• What factors must be considered?
• Is the assessment documented?
• Is the criminal conduct meaningfully related to the job?
• Has the employer considered required rehabilitation or mitigation information?

Notices

• Does federal FCRA pre-adverse action apply?
• Is an additional fair-chance notice required?
• Must the employer provide its analysis?
• Are local forms required?
• What response period applies?

Final Decision

• Was applicant information actually considered?
• Was a reassessment required?
• Did the employer—not the CRA—make the decision?
• Are final federal and local notices complete?

34. Questions Employers Should Ask Their CRA

1. Can your platform delay criminal screening until after a conditional offer?

2. Can packages be configured by jurisdiction?

3. Can criminal screening be separated from employment or education verification?

4. How do your ATS integrations handle fair-chance timing?

5. Does your system support state/local adverse-action notices?

6. Can it support different response periods?

7. How are prohibited or restricted records handled?

8. How are corrected reports routed when an applicant disputes information?

9. Can the platform document when notices were sent?

10. Can workflows be updated when laws change?

11. Who is responsible for maintaining jurisdiction-specific logic?

12. Which responsibilities remain with the employer?

The answer to the last question is particularly important. A technology platform can support compliance. It does not make the employer legally compliant by itself.

35. Frequently Asked Questions

What is ban the box?

Ban-the-box laws generally restrict criminal-history questions early in the hiring process. Some modern laws go further and regulate background-check timing, individualized assessment, notices and adverse decisions.

Is ban the box a federal law for all private employers?

No. Federal fair-chance rules apply to federal agencies and certain federal-contractor hiring, while private employers must also evaluate applicable state and local laws.

Can an employer ever conduct a criminal background check?

Yes. Fair-chance laws generally regulate when and how criminal history is considered rather than universally prohibiting criminal background screening.

Does every state require a conditional offer first?

No. Requirements differ substantially by jurisdiction. California and New York City are examples of jurisdictions with post-conditional-offer criminal-history frameworks.

What is an individualized assessment?

It is an evaluation of an applicant’s criminal history in relation to the particular job using factors required by applicable law rather than applying an automatic exclusion.

Is an individualized assessment required everywhere?

No. It depends on the applicable law and circumstances.

Does FCRA pre-adverse action satisfy fair-chance law automatically?

Not necessarily. A state or local law may require additional analysis, notices, forms, response periods or explanations.

Can employers consider arrests?

That depends on the jurisdiction and circumstances. The EEOC distinguishes arrests from convictions and explains that an arrest alone does not establish that criminal conduct occurred. Some jurisdictions restrict consideration of arrests even further.

Does a criminal conviction automatically disqualify someone from employment?

There is no universal federal rule making every conviction an automatic bar to every job. Some specific laws establish disqualifications for particular positions, while other situations require job-related evaluation.

Can a CRA decide whether an applicant passes a fair-chance assessment?

The employer remains the employment decision-maker. A CRA may provide reporting, workflow or client-defined decision-support tools, but it should not be confused with the employer making the actual hiring decision.

Can a company use one national background-screening policy?

It can establish a national baseline, but that policy may still require jurisdiction-specific modifications to satisfy state and local rules.

36. The Central Principle

Fair-chance laws do not eliminate professional background screening. They change the way it is used.

The most important shift is from “Does this person have a criminal record?” to a more careful set of questions:

• When are we legally allowed to consider it?
• What information are we legally permitted to use?
• How relevant is the conduct to this particular job?
• How much time has passed?
• What does the applicant have to say about it?
• Does applicable law require an individualized assessment?
• Have we provided the correct notices and response opportunity?
• Are we making the decision consistently and responsibly?

For employers operating across multiple jurisdictions, fair-chance compliance is increasingly a workflow-design issue as much as a legal-policy issue.

Recruiting software, ATS integrations, CRA technology, hiring policies and employee training all need to work together.

The strongest process is not the one that screens candidates out fastest. It is the one that allows an employer to obtain legitimate criminal-history information at the appropriate time, evaluate that information responsibly, protect applicant rights, and make a documented job-related decision consistent with applicable law.

Related Resources

Background Screening for Employers

The broader guide to screening design, employer FCRA responsibilities, report review and provider oversight.

Pre-Adverse and Adverse Action in Employment Background Screening

The detailed federal FCRA workflow when consumer-report information may contribute to an unfavorable employment decision.

Background Check Disputes: A Guide for Employers and Consumers

How inaccurate or incomplete background-report information is challenged and reinvestigated.

A Guide to Professional Background Screening

The cornerstone guide covering the screening ecosystem, technology, data sources, accuracy and compliance. Fair-chance requirements are introduced there as a separate state/local layer beyond federal FCRA obligations.

Source Review

Last legally reviewed: September 22, 2026

Primary sources for this page should include:

• U.S. EEOC criminal-history guidance;
• U.S. Office of Personnel Management Fair Chance Act materials;
• 41 U.S.C. § 4714 for covered federal-contractor hiring;
• California Civil Rights Department Fair Chance Act guidance and current employer toolkit;
• New York City Commission on Human Rights Fair Chance Act materials; and
• FCRA/FTC materials linked from the related adverse-action guide.

Because this page deals heavily with state and local law, it should receive a more frequent legal-review cycle than general educational pages.

Source: California CRD — July 2026 Fair Chance Act enforcement release

This guide is provided for general educational purposes and is not legal advice. Fair-chance, criminal-history and employment laws can change and vary substantially by state, city, employer, position and circumstances. Employers should obtain qualified legal guidance when designing or applying criminal-history hiring policies.