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 Colorado, as part of the 'ban-the-box' movement, state law restricts employers from asking about criminal history on an initial job application. This means that employers cannot require applicants to disclose any felony convictions at the early stage of the hiring process. This aligns with the broader trend across various states and the District of Columbia to give individuals with criminal records a fair chance at employment by delaying such inquiries until later in the hiring process. Additionally, 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 under federal law. Employers are encouraged to evaluate each situation individually, considering the job's nature, the offense's severity, and the time elapsed since the conviction. Federal agencies and contractors are also prohibited from asking about criminal history until after a conditional job offer has been extended, starting in 2021. While state laws vary, many prohibit the consideration of arrest records, which are not indicative of guilt. In Colorado, if an applicant or employee is asked about felony convictions and fails to disclose them, they could face consequences such as termination upon discovery through a background check and potential ineligibility for unemployment benefits due to dishonesty.