TL;DR

Ban the Box is a legislative and policy movement that prohibits employers from asking about criminal history on a job application. The name refers to the checkbox on application forms asking whether an applicant has ever been convicted of a crime. Under these laws, employers must evaluate qualifications first and may only conduct criminal background checks later in the hiring process, typically after a conditional offer.

The Policy and What It Changes

Ban the Box does not prevent employers from running background checks. It changes when they can. The core mechanism is sequencing: criminal history questions are removed from the initial application, and any criminal record inquiry is delayed until the candidate has demonstrated they meet the job's qualifications. In jurisdictions with more robust versions of the law, the employer must make a conditional offer before running a check, and must then conduct an individualised assessment before withdrawing the offer based on a criminal record.

The individualised assessment requirement is where the law has the most teeth for employers. Rather than an automatic disqualification rule, the employer must consider the nature of the crime, how long ago it occurred, the candidate's history since, and whether the offence is directly relevant to the job's duties. A 2012 guidance from the Equal Employment Opportunity Commission (EEOC) established that blanket criminal record exclusions violate Title VII of the Civil Rights Act if they produce disparate impact on protected classes, because conviction rates are not uniform across racial groups. Ban the Box laws operationalise this principle through statute.

Coverage varies significantly by jurisdiction. As of 2025, over 37 US states and more than 150 cities and counties have enacted some form of Ban the Box legislation. Some apply only to public employers; others extend to private employers above a headcount threshold. Hawaii's law applies to any employer with more than one employee. New York City's Fair Chance Act imposes specific procedural requirements including a written analysis applying eight factors before withdrawing an offer. Employers operating across multiple states carry the burden of tracking jurisdiction-specific requirements.

Why It Matters for Recruitment

For agency recruiters, Ban the Box compliance is a client liability issue. When a staffing agency screens candidates on behalf of a client and applies a blanket criminal exclusion policy, both the agency and the client may be exposed to EEOC complaints and litigation. Agencies need to understand which rules apply in each client location and build workflows that sequence criminal checks correctly.

The practical workflow change is straightforward. Application forms should have no criminal history checkbox. The ATS should not surface criminal record questions until the conditional offer stage. The background check is ordered only after the conditional offer is extended. If the check returns a concerning result, a documented individualised assessment occurs before the offer is withdrawn, and the candidate receives the legally required pre-adverse action notice.

Ban the Box also changes recruiting strategy. Candidates with criminal records represent a significant labour pool. An estimated 70 million Americans, roughly 30% of the adult population, have some form of criminal record. Many have the skills and reliability an employer needs. By filtering them out before reviewing qualifications, employers narrow their talent pool unnecessarily. Employers in sectors with chronic labour shortages, including logistics, manufacturing, and food service, have found that Ban the Box compliance combined with fair chance hiring practices reduces time-to-fill.

The reputational dimension matters for [employer branding](/glossary/employer-branding). Companies that publicly commit to fair chance hiring attract candidates who might otherwise not apply, including those with records who assume they will be excluded. Target, Walmart, and JPMorgan Chase are among the large employers that have adopted fair chance policies beyond what the law requires. Staffing agencies that help clients implement compliant, fair hiring processes become advisors rather than order-takers.

In Practice

A property management company with facilities in New York City, Los Angeles, and Chicago hired a staffing agency to fill 40 maintenance technician roles across the three markets. The company's existing application had a criminal history checkbox and a policy excluding anyone with a felony conviction in the past 10 years.

The agency flagged that this approach violated New York City's Fair Chance Act and California's FEHA requirements, and created disparate impact risk under federal EEOC guidance. The agency removed the criminal history question from the application form, reconfigured the ATS to trigger background checks only after a conditional offer, and drafted a Fair Chance Act-compliant individualised assessment form for New York candidates.

Of the 40 roles filled, 6 candidates (15%) had criminal records that appeared at the background check stage. After individualised assessment, 4 were determined to have no relevant disqualifying history and received confirmed offers. 2 had recent convictions directly related to property access and were declined following the proper adverse action process. The company avoided two potential EEOC complaints and one city-level civil penalty that would have applied under the prior blanket exclusion policy.

Key Facts