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 New Jersey, the 'ban-the-box' law, formally known as The Opportunity to Compete Act, restricts employers from inquiring about an applicant's criminal history during the initial employment application process. Employers are not allowed to ask about criminal records on job applications or conduct a criminal background check until after the first interview has been conducted. This law applies to employers with 15 or more employees over 20 calendar weeks and aims to provide individuals with a fair chance at employment by delaying the point at which an employer can inquire about an applicant's criminal history. The law does not prevent employers from eventually conducting background checks, but it does require that they wait until later in the hiring process. Additionally, the EEOC guidelines suggest that employers should consider the nature of the crime, its relevance to the job, and the time elapsed since the conviction, rather than having a blanket policy against hiring individuals with criminal records. In New Jersey, as in many states, it is also illegal for employers to ask about arrest records that did not lead to conviction. Failure to disclose a felony conviction when asked, after the point in the hiring process when such questions are permitted, can lead to termination and potential ineligibility for unemployment benefits due to untruthfulness.