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 York, the Fair Chance Act, which is part of the New York City Human Rights Law, prohibits most employers from asking about criminal history until after a conditional offer of employment has been made. This means that employers cannot include a criminal history question on job applications or inquire about an applicant's criminal background during the initial interview process. Once a conditional offer is made, employers can inquire about criminal history but must follow specific guidelines when considering it, including a consideration of the time passed since the conviction, the nature of the offense, and its relevance to the job. The New York State Human Rights Law also provides protections against discrimination based on a criminal conviction, requiring employers to consider similar factors. Additionally, under federal law, the EEOC advises against blanket policies denying employment based on criminal convictions, as they may disproportionately affect certain racial groups. Employers must instead assess criminal history information on a case-by-case basis. As of 2021, federal agencies and contractors are restricted from asking about criminal history until after a conditional job offer. It's important for job applicants in New York to be aware that failure to disclose a felony conviction when asked, after a conditional offer has been made, can lead to termination and potential ineligibility for unemployment benefits due to untruthfulness.