Employers have traditionally asked job applicants and employees to state whether they have any felony criminal convictions by checking a box yes or no. And employers in most states still inquire about felony criminal convictions—but thirteen states and the District of Columbia have enacted ban-the-box or chance-to-compete laws that prohibit employers from asking this question—at least in an initial job application. These states include California, Colorado, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. And more than 30 states have similar laws that apply to government employers.

The (federal) Equal Employment Opportunity Commission (EEOC) has stated that a rigid policy of inquiring about criminal convictions and denying employment on that basis may violate federal antidiscrimination laws, as such a policy may have a disparate impact on certain racial groups. The EEOC encourages employers to make the decision on a case-by-case basis after considering the nature of the job, the severity of the criminal offense, and the amount of time that has elapsed since the criminal conviction. Beginning in 2021, federal agencies and contractors may not inquire into an applicant’s criminal history until after a conditional offer has been made.

And many states have laws that prohibit employers from considering arrest records, as arrest records are distinct from conviction records and arrests are not a determination or adjudication of guilt. Laws regarding the ability of employers to ask job applicants and employees about arrest and criminal convictions vary from state to state and are generally located in a state’s statutes.

There are serious potential consequences to a job applicant or employee not disclosing a felony conviction when asked—including (1) loss of employment when the employer receives the results of a background check that includes the conviction, and (2) loss of unemployment benefits because the termination is for the employee’s untruthfulness.

In Arkansas, as of the knowledge cutoff in 2023, there is no statewide 'ban-the-box' law that applies to private employers, which means that private employers can ask about felony convictions on initial job applications. However, federal regulations, such as guidance from the Equal Employment Opportunity Commission (EEOC), apply. The EEOC advises against blanket policies that deny employment based on criminal convictions, as they may disproportionately affect certain racial groups and could be considered discriminatory. Employers are encouraged to assess each case individually, considering the job's nature, the offense's severity, and the time elapsed since the conviction. For federal agencies and contractors, a policy has been in place since 2021 that prohibits asking about criminal history until after a conditional job offer has been extended. While Arkansas does not have a statewide law that prohibits employers from considering arrest records, it is important to note that arrest records, which are not indicative of guilt, should be distinguished from conviction records. Job applicants and employees in Arkansas should be aware that failure to disclose a felony conviction when asked could lead to termination if discovered through a background check and could also affect eligibility for unemployment benefits due to termination for untruthfulness.