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 Maryland, employers are subject to 'ban-the-box' regulations which limit their ability to inquire about an applicant's criminal history on initial job applications. Maryland's law, which took effect on February 29, 2020, prohibits private employers with 15 or more full-time employees from asking about an applicant's criminal record or criminal accusations before the first in-person interview. This law aims to provide individuals with a fair chance at employment by allowing them to be evaluated on their qualifications first, without the stigma of a criminal record. However, after the first interview, employers may inquire about the applicant's criminal history. It's important to note that certain positions, especially those involving vulnerable populations or sensitive duties, may be exempt from these restrictions. Additionally, the EEOC's guidance applies, encouraging employers to consider the nature of the crime, its relevance to the job, and the time elapsed since the offense, rather than implementing blanket policies against hiring individuals with criminal records. Failure to disclose a felony conviction when asked, after the initial stages of the application process, can lead to termination and potential ineligibility for unemployment benefits due to untruthfulness.