Can You Ask a Potential Employee About Criminal History?

Yes, you can ask a potential employee about their criminal history, but federal, state, and local rules control the timing of the question, the records you’re allowed to consider, and how you use the answer. Title VII of the Civil Rights Act and the Fair Credit Reporting Act set the federal floor. Roughly half the states add fair-chance hiring laws that push the question later in the process. Get the sequence or the paperwork wrong and you face discrimination claims, statutory damages, or both.

When You Can Ask

More than half the states have enacted some form of fair-chance hiring law, commonly called “ban the box.” These laws don’t prohibit criminal history questions. They delay them until after the employer has evaluated the applicant’s qualifications.

Coverage varies widely. Roughly a dozen states extend the restriction to private employers; the rest apply only to government hiring. Many major cities layer their own ordinances on top, sometimes stricter than the state rule. The specifics differ on employee-count thresholds, which records can be asked about, and the exact point in the process when the inquiry is allowed. Some jurisdictions permit the question after an initial interview. Others push it to the conditional-offer stage. Identify every state and local law that applies based on where your employees actually work, not just where your headquarters sits.

Federal Agencies and Federal Contractors

If you’re hiring for a federal agency or a federal contractor role, the Fair Chance to Compete for Jobs Act at 5 U.S.C. § 9202 prohibits requesting criminal history information before extending a conditional offer.¹ That covers oral and written requests, including electronic application systems. Exceptions apply for positions requiring a security clearance, sensitive national security duties, and federal law enforcement roles.²

Arrests Versus Convictions

This is where employers most often go wrong. An arrest, standing alone, is not evidence someone committed a crime. The EEOC’s position is direct: using an arrest record by itself to deny employment is not job-related and not consistent with business necessity.³ People get arrested without being charged. People get charged and acquitted.

That doesn’t put the underlying conduct off-limits. If an employer learns about specific conduct from an arrest report and that conduct would make the person unfit for the job, the employer can act on the conduct itself. The arrest isn’t the disqualifier; the behavior is. A conviction carries more weight because it reflects a finding of guilt, but even a conviction is not an automatic bar under EEOC guidance.

Expunged, Sealed, and Juvenile Records

When a court expunges or seals a record, the legal intent is that the record no longer exists for most employment purposes. Most states prohibit employers from asking about expunged or sealed convictions, and applicants in those states can legally answer “no” when asked if they have a criminal record. The practical problem is that background screening databases don’t always catch up. The EEOC has acknowledged that private companies may continue to report convictions that were later expunged, or report as felonies offenses that were later downgraded.⁴ If a report shows a record the applicant says was expunged, verify before acting.

Juvenile records receive similar protection. Most states restrict or prohibit employer access to juvenile adjudications, and many screening companies exclude them by default. Confirm with your provider what is included.

How to Evaluate What You Find

A criminal record isn’t a protected characteristic under Title VII, but the EEOC has long warned that blanket policies excluding applicants with records can violate the law through disparate impact.⁴ Because arrest and conviction rates aren’t evenly distributed across racial and ethnic groups, a policy that automatically rejects anyone with a record will almost always trigger this analysis. Once disparate impact is established, the employer has to prove the policy is job-related and consistent with business necessity. A hunch that people with records are risky won’t clear that bar.

The Green Factors

The EEOC’s framework for tying a conviction to a specific job comes from the 1977 case Green v. Missouri Pacific Railroad. Three factors guide the analysis:

Nature and gravity of the offense. A violent felony raises different concerns than a minor property crime.
Time elapsed since the offense or the completion of the sentence. A decade-old conviction carries less weight than a recent one.
Nature of the job. A theft conviction is more relevant for a position handling cash or financial data than for a warehouse role with no access to valuables.

These factors aren’t a checklist to breeze past. The EEOC has flagged, for example, that a bank’s 20-year lookback for any financial crime was overbroad because the bank couldn’t show that someone crime-free for more than a decade still posed elevated risk.⁴ Apply the factors consistently, and document how you weighed them.

The Individualized Assessment

After applying the Green Factors, the EEOC recommends one more step before rejecting an applicant: an individualized assessment. It has three parts. Tell the applicant which specific conviction flagged them. Give them a chance to respond with context, including what has changed and any evidence of rehabilitation such as completed education, stable employment, or character references. Then actually consider what they tell you before making a final call. Going through the motions and ignoring the response doesn’t count.⁴

Rigid, automatic disqualifications are the most legally vulnerable policies. A company that rejects every applicant who checks “yes” on a conviction question, regardless of the offense or the job, is practically inviting a challenge.

If You Use a Third-Party Background Check

When an employer runs a background check through an outside screening company rather than asking the applicant directly, the Fair Credit Reporting Act applies. Its requirements are procedural. Skipping a step creates liability even when the underlying hiring decision was perfectly fair.

Before ordering a report, provide the applicant with a written notice that a background check may be used in the hiring decision. This notice must be a standalone document, not buried in the job application. Get the applicant’s written consent before the report is ordered.⁵

If the report contains information that might lead to a decision not to hire, follow a two-step adverse action process. First, send a pre-adverse action notice: a letter that includes a copy of the report and a summary of the applicant’s FCRA rights. The point is to give the applicant a reasonable window to review and dispute anything inaccurate. The FTC recommends waiting at least five business days. After that, if you still decide not to hire, send a formal adverse action notice identifying the screening company that produced the report.⁵

How Far Back a Report Can Reach

The FCRA limits how far back a screening company can look. Arrests that did not result in a conviction cannot be reported if they are more than seven years old. The same seven-year ceiling applies to other non-conviction records like dismissed charges and acquittals.⁶ Conviction records have no federal time limit and can be reported indefinitely.

One significant exception: the seven-year restriction does not apply to positions with an annual salary of $75,000 or more.⁶ For those roles, older items that would otherwise be excluded can appear. Some states impose stricter limits that override the federal floor, including states that prohibit reporting non-conviction records entirely regardless of salary.

What Violations Cost

Employers who willfully skip FCRA steps face statutory damages between $100 and $1,000 per affected applicant, without any proof of actual harm. Courts can add punitive damages, and the employer pays the applicant’s attorney fees.⁷ A single flawed disclosure form or a missing pre-adverse action notice affects every applicant who went through the process. In a class action, that adds up fast. Most employers who “meant well” get into trouble here, not because they made a bad hiring decision, but because the paperwork trail wasn’t clean.

When Background Checks Are Mandatory

Some regulated industries flip the default. Federal law requires the check, and the fair-chance timing rules yield accordingly. FCRA procedures still apply when a third-party screener is involved.

Section 19 of the Federal Deposit Insurance Act, at 12 U.S.C. § 1829, prohibits any insured bank from hiring someone convicted of an offense involving dishonesty, breach of trust, or money laundering without written FDIC consent.⁸ The ban covers anyone who would be an “institution-affiliated party.” Banks must document the inquiry before allowing the person to start work.⁹

Workers who need security-sensitive transportation credentials, including hazardous materials endorsements on commercial licenses, face TSA disqualifiers. Permanent disqualifiers include felonies like espionage, treason, terrorism-related offenses, and murder.¹⁰ Interim disqualifiers cover offenses like weapons violations, extortion, fraud, and smuggling, and apply for seven years after conviction or five years after release from incarceration, whichever is later.¹¹

Long-term care facilities must screen prospective employees under 42 CFR 483.12. The specific disqualifying offenses and process are set at the state level, so what triggers a bar in one state may not in another.

Why “Just Don’t Ask” Isn’t Safe

Reading all of this, an employer might conclude the safest play is to skip criminal history entirely. That instinct backfires. Under the common-law doctrine of negligent hiring, recognized in every state, an employer can be liable when it hires someone who poses an unreasonable risk of harm and that person injures a third party. The test is whether the employer knew, or should have known through reasonable diligence, that the employee was unfit for the role.

Ban-the-box delays the question, and the EEOC discourages blanket exclusions, but negligent hiring law penalizes employers who skip the inquiry for roles where the risk is foreseeable. A delivery company that never checks whether its drivers have violent felonies, or a childcare center that doesn’t screen for sex offenses, is exposed if something goes wrong. The resolution is timing and tailoring. Ask at the point your jurisdiction allows, evaluate what you find using the Green Factors, and document your reasoning.

Practical Steps

Identify every state and local fair-chance law that applies based on where your employees work.
Remove the criminal history question from the initial application even where not legally required. Delaying the inquiry aligns with EEOC guidance and reduces risk.
If you use a third-party screener, keep the FCRA disclosure on its own page. Embedding it in a multi-page application is a common and expensive mistake.
Apply the Green Factors the same way for every applicant. Inconsistency is the fastest way to lose a disparate impact case.
Always send pre-adverse action notice with the report and rights summary. Wait at least five business days before finalizing.
Conduct individualized assessments and note the applicant’s response in the file.
If a report shows a record the applicant says was expunged or sealed, verify before acting.
Document every step from disclosure through final decision. If a decision is challenged, the documentation is the defense.

1
Federal Register. Fair Chance To Compete for Jobs
2
U.S. Department of the Treasury. The Fair Chance to Compete Act
3
U.S. Equal Employment Opportunity Commission. Questions and Answers About the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records
4
U.S. Equal Employment Opportunity Commission. Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act
5
Federal Trade Commission. Background Checks What Employers Need to Know
6
Office of the Law Revision Counsel. 15 U.S. Code 1681c – Requirements Relating to Information Contained in Consumer Reports
7
Office of the Law Revision Counsel. 15 U.S. Code 1681n – Civil Liability for Willful Noncompliance
8
Office of the Law Revision Counsel. 12 USC 1829 – Penalty for Unauthorized Participation by Convicted Individual
9
eCFR. Subpart L – Section 19 of the Federal Deposit Insurance Act
10
Transportation Security Administration. Disqualifying Offenses and Other Factors
11
eCFR. 49 CFR 1572.103 – Disqualifying Criminal Offenses