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 Wisconsin, there is no statewide 'ban-the-box' law that applies to private employers, which means that private employers can ask about criminal convictions on job applications. However, the City of Madison has a local ordinance that restricts employers from asking about criminal history on initial job applications. Wisconsin employers are generally allowed to inquire about felony convictions, but they must comply with federal laws, including those enforced by the Equal Employment Opportunity Commission (EEOC). The EEOC guidelines suggest that employers should not have blanket policies against hiring individuals with criminal records and should instead evaluate each candidate individually, considering the nature and gravity of the offense, the time that has passed, and the nature of the job sought. Additionally, federal law now prohibits federal agencies and contractors from asking about criminal history until after a conditional job offer has been made. In Wisconsin, it is also illegal for employers to discriminate against individuals with arrest records that did not lead to conviction. If a job applicant or employee in Wisconsin is asked about felony convictions and fails to disclose them, they could face consequences such as termination of employment or loss of unemployment benefits if the omission is discovered.