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 Iowa, there is currently no statewide 'ban-the-box' law that applies to private employers, which means that employers may ask about felony convictions on initial job applications. However, Iowa does have a 'ban-the-box' policy for public employment, which restricts state agencies from asking about criminal history until after a conditional offer of employment has been made. This aligns with the federal policy for federal agencies and contractors, which also prohibits inquiring into an applicant's criminal history until after a conditional offer. The EEOC's guidance, while not law, suggests that employers should avoid blanket policies that exclude all applicants with a criminal record and instead assess applicants on a case-by-case basis, considering the nature and gravity of the offense, the time that has passed, and the nature of the job sought. Iowa employers must also be aware of the potential for discrimination claims if their hiring practices disproportionately affect certain racial groups. Regarding arrest records, Iowa law (Iowa Code § 692.2) generally prohibits employers from considering arrest records that did not lead to a conviction when making hiring decisions. Failure to disclose a felony conviction when asked by an employer can lead to termination and potential ineligibility for unemployment benefits due to untruthfulness.