Ban the box means removing the criminal-record question from job applications and waiting until later in hiring, usually after a conditional offer, before asking about convictions. It isn't one national law. It's a set of state, city and federal fair chance rules, and the strictest ones also control how you can withdraw an offer after a background check.
The name comes from the tick box on application forms asking whether you've ever been convicted of a crime. The idea is simple: judge the candidate's skills first, then look at their record in context, rather than filtering people out before anyone reads their application.
The main rules side by side
| Rule | Who it covers | When you can ask | Key condition |
|---|---|---|---|
| California Fair Chance Act (in effect since 1 January 2018) | Public and private employers with five or more employees | After a conditional job offer | Individualized assessment and written notices before withdrawing an offer |
| Federal Fair Chance to Compete for Jobs Act of 2019 | Federal agencies hiring into the civil service | After a conditional offer | Exceptions for classified access, national security, law enforcement and dual-status military technician roles |
| EEOC guidance (2012) | Employers covered by Title VII | Recommended: not on the application | A best practice, not a ban, aimed at avoiding race and national origin discrimination |
California: the most detailed process
California's Civil Rights Department publishes the clearest step-by-step rules, and they're a good model even outside the state. Before a conditional offer, a covered employer can't include conviction questions on the application or ask about or consider criminal history. Even after an offer, it can't consider arrests that didn't lead to a conviction, completed diversion programs, or convictions that have been sealed, dismissed or expunged.
If a background check turns something up and you're thinking of withdrawing the offer, the law sets out a sequence:
- Make an individualized assessment: the nature and gravity of the offense, the time that has passed, and the nature of the job. A blanket 'we don't hire anyone convicted of X' doesn't meet the test.
- Tell the candidate in writing about your preliminary decision, list the convictions that disqualify them, and give them a copy of any conviction history report you relied on.
- Give them at least five business days to respond. If they tell you within that time that they dispute the report, they get an additional five days.
- Consider whatever they send, such as evidence of rehabilitation or that the record is wrong.
- Send a final written decision, including any process to challenge it and their right to file a complaint with the Civil Rights Department.
The law has exceptions, including some health facility positions, farm labor contractors, state criminal justice agencies and any role where another law requires a background check.
The federal rule and the EEOC's view
For federal jobs, the Treasury's fact sheet on the Fair Chance Act explains that an agency employee can't ask an applicant to disclose criminal history before the appointing authority extends a conditional offer, unless the law requires it. An applicant can complain within 30 calendar days of an alleged violation.
For private employers everywhere, the most important federal document is the EEOC's 2012 enforcement guidance under Title VII. Here's the sourced insight people miss: the EEOC says the fact of an arrest doesn't establish that criminal conduct occurred, so excluding someone for an arrest alone isn't job related and consistent with business necessity. As a best practice, the Commission recommends that employers don't ask about convictions on job applications, and that any later questions are limited to convictions that would be job related for the role.
The guidance builds on three 'Green factors' that mirror California's test: the nature and gravity of the offense, the time that has passed since the offense or sentence, and the nature of the job held or sought.
What about the UK?
The UK debate runs through criminal record checks rather than a single ban. The DBS filtering guide explains that certain old or minor offences are 'protected': they don't need to be disclosed to employers, and if they are, employers can't take them into account. Convictions that led to a custodial sentence are always disclosed on Standard and Enhanced checks, as are 'specified offences', which are usually serious violent or sexual offences or relevant to safeguarding. The current filtering rules apply to certificates issued on or after 28 October 2023.
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A fair chance hiring checklist
- Remove the conviction question from every application form and job ad.
- Move any record check to after a conditional offer, and say so in your hiring process.
- Write down which convictions are relevant to which roles, and why.
- Train interviewers not to ask about records before the offer stage.
- Use a written individualized assessment and keep a copy.
- Follow the written notice and response steps before withdrawing any offer.
If you're choosing a screening provider, see our roundup of background check services, and for the other pre-start check every US employer runs, our E-Verify guide.
The verdict
Even where no ban the box law applies to you, the EEOC's advice points the same way: take the question off the application, ask later, and judge the record against the job. The California process is the safest template to copy because it forces the two things that prevent bad decisions, a written assessment and a chance for the candidate to respond.
Frequently asked questions
What does ban the box mean?
It means removing the criminal-record question from job applications and only asking about convictions later in hiring, usually after a conditional job offer.
Is ban the box a federal law?
Not for private employers in general. The federal Fair Chance Act covers federal agencies hiring into the civil service, while states and cities set their own rules, and the EEOC recommends not asking about convictions on applications.
How long does a candidate get to respond in California?
At least five business days after written notice of the preliminary decision. If they tell the employer within that time that they dispute the conviction report, they get an additional five days.
Can an employer consider an arrest without a conviction?
California's Fair Chance Act bars considering arrests that didn't lead to a conviction, and the EEOC says an exclusion based on an arrest alone isn't job related and consistent with business necessity.
