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 Minnesota, the 'Ban the Box' law prohibits employers from inquiring about a job applicant's criminal history on initial job applications. This means that employers cannot ask applicants to check a box if they have a felony conviction early in the hiring process. However, employers may still conduct a criminal background check later in the hiring process. The intention behind this law is to allow applicants with a criminal history to be evaluated on their qualifications first, without the immediate stigma of a conviction. The Minnesota law aligns with the guidance from the Equal Employment Opportunity Commission (EEOC), which advises against blanket policies that deny employment based on criminal convictions, as they may disproportionately affect certain racial groups. Employers are encouraged to consider the nature of the crime, its relevance to the job, and the time elapsed since the offense. Additionally, federal law now restricts federal agencies and contractors from asking about criminal history until after a conditional job offer is made. While Minnesota employers can eventually ask about criminal convictions, they must be cautious not to use arrest records in their decision-making, as these are not indicative of guilt. Failure to disclose a felony conviction when required can lead to termination and potential ineligibility for unemployment benefits due to dishonesty.