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 Utah, as of the knowledge cutoff in 2023, there is no statewide 'ban-the-box' law that applies to private employers, which means that employers may ask job applicants to disclose felony convictions on initial job applications. However, employers must comply with federal regulations, including guidance from the Equal Employment Opportunity Commission (EEOC), which discourages blanket policies against hiring individuals with criminal records and suggests that employers assess candidates on a case-by-case basis. This approach takes into account the nature and gravity of the offense, the time elapsed since the conviction, and the relevance of the criminal history to the job in question. Additionally, federal law now prohibits federal agencies and contractors from asking about an applicant's criminal history until after a conditional job offer has been extended. While Utah does not have a statewide law that mirrors the 'ban-the-box' policies of other states, employers must still be mindful of potential discrimination claims under federal law if their hiring practices disproportionately affect individuals based on race or other protected characteristics. Furthermore, Utah employers should be aware that there are consequences for job applicants who fail to disclose felony convictions when asked, such as termination of employment upon discovery through background checks and potential ineligibility for unemployment benefits due to termination for dishonesty.