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 Massachusetts, the Commonwealth has implemented 'ban-the-box' legislation that restricts employers from asking about criminal history on initial job applications. This means that employers cannot ask applicants to check a box if they have a felony conviction at the early stage of the hiring process. The aim is to allow candidates to be evaluated on their qualifications first, without the stigma of a criminal record. However, employers may still inquire about criminal history later in the hiring process. The Massachusetts law aligns with the guidance from the Equal Employment Opportunity Commission (EEOC), which advises against blanket policies denying employment based on criminal convictions due to potential discriminatory effects. The EEOC recommends that employers assess criminal history in relation to the job in question, considering the nature and gravity of the offense, and the time elapsed since the conviction. Additionally, federal law now prohibits federal agencies and contractors from asking about criminal history until after a conditional job offer has been made. In Massachusetts, as in many states, it is also generally prohibited for employers to consider arrest records that did not lead to a conviction. Job applicants should be aware that failing to disclose a felony conviction when required to do so by an employer can lead to termination and potential ineligibility for unemployment benefits.