Can You Ask About Criminal History on a Job Application?

Whether you can ask about criminal history on a job application depends on where the job is, who the employer is, and what the position involves, but for most employers in 2026 the answer is that putting the question on the application itself is either illegal or legally risky. More than 35 states and 150-plus cities and counties have passed “ban the box” laws that delay the inquiry. Federal contractors and agencies operate under the Fair Chance Act. And even employers with no ban-the-box law in their jurisdiction still have to answer to Title VII of the Civil Rights Act if their criminal-record screening disproportionately excludes protected groups.

None of this means criminal history is off-limits forever. It means the timing, the method, and the reasoning all matter.

State and Local Ban-the-Box Laws

The most direct restrictions come from state and local governments. Ban-the-box laws generally prohibit employers from including a criminal history question on the job application. They don’t prevent background checks; they push the inquiry to a later stage so an applicant’s qualifications get considered first.

The details differ a lot from one place to the next. Some laws cover only public-sector employers. Others reach private employers, sometimes with a minimum headcount before the law applies. The timing rule also varies. In some jurisdictions the question is allowed after the first interview. In others, the employer must wait until it has extended a conditional offer. A practice that is fine in one city can carry fines in the next one over, so checking the specific rule for your jurisdiction is not optional.

The Federal Fair Chance Act

At the federal level, the Fair Chance to Compete for Jobs Act prohibits federal agencies and federal contractors acting on their behalf from asking about criminal history before making a conditional offer.¹ The Office of Personnel Management finalized its regulations in October 2023, and those rules are in effect.² If you apply for a federal job, the application should not ask about your record, and no one on the hiring side should request that information until a conditional offer is on the table.

There are exceptions. Positions requiring access to classified information, roles designated as sensitive under the national security position designation system, and federal law enforcement positions are exempt from the delayed-inquiry rule.³ For those roles, federal law requires the earlier inquiry.

Title VII Limits Even When Asking Is Allowed

Suppose you are a private employer in a state with no ban-the-box law. Can you put the question on the application? Technically yes, but Title VII of the Civil Rights Act of 1964 still constrains what you do with the answer. The Equal Employment Opportunity Commission has not banned criminal history questions, but its guidance treats blanket exclusions as illegal discrimination.⁴

The theory is disparate impact. A hiring policy that looks neutral can still violate Title VII if it disproportionately screens out applicants of a particular race or national origin and the employer cannot show the policy is job-related and consistent with business necessity. National data shows higher conviction rates among certain minority groups, so a policy of automatically rejecting anyone with a record falls into exactly this problem.⁵ The EEOC has filed enforcement actions against employers whose blanket policies produced that impact.

The Individualized Assessment

To stay within Title VII, the EEOC recommends an individualized assessment rather than automatic disqualification. Three factors drive that analysis:

The nature and gravity of the offense. A shoplifting conviction ten years ago is not the same thing as a recent fraud conviction when the job involves handling money.
How much time has passed since the offense and the completion of any sentence. Older records generally carry less weight.
The nature of the job. The conviction has to have a real connection to the duties of the specific position.

An employer who applies those factors and gives flagged applicants a chance to explain mitigating circumstances is far more likely to satisfy the “job related and consistent with business necessity” standard than one applying a blanket exclusion.⁴

Arrests, Convictions, and Sealed Records

The distinction between an arrest and a conviction matters. An arrest means someone was taken into custody; it says nothing about guilt. A conviction means a court found the person guilty or the person pleaded guilty. Many jurisdictions prohibit employers from asking about arrests that never led to a conviction, and the EEOC treats arrest-based exclusions as particularly suspect.⁴

Expunged and sealed records get stronger protection. Once a record is expunged, it is removed from public view and should not appear on a standard background check. In most jurisdictions an applicant whose record has been expunged can legally deny that the arrest or conviction ever occurred. Employers generally cannot consider expunged or sealed records, and in many places asking about them is itself illegal. If an expunged record somehow surfaces during a background check, the employer generally cannot use it against the applicant.

Industries Where the Question Is Required

Ban-the-box laws almost always carve out industries where federal or state law mandates criminal background screening. In these fields, certain convictions can be automatic disqualifiers regardless of how long ago they happened.

Banking and Financial Services

Section 19 of the Federal Deposit Insurance Act prohibits anyone convicted of a crime involving dishonesty, breach of trust, or money laundering from working at an FDIC-insured bank without prior written consent from the FDIC.⁶ Banks are required to run background checks and cannot hire someone covered by Section 19 without FDIC approval. The ban extends to anyone who entered a pretrial diversion program for a covered offense. A narrow exception exists for certain misdemeanors committed more than one year before the person applies for consent.⁷

Healthcare

Federal law requires exclusion from Medicare and Medicaid participation for individuals convicted of certain categories of offenses, including crimes related to the delivery of healthcare services under federal or state programs, patient abuse or neglect, healthcare fraud, and felony convictions for the unlawful manufacture or distribution of controlled substances.⁸ Long-term care facilities and other providers receiving Medicare or Medicaid funding are required to screen for these convictions.

Law Enforcement, Corrections, and Positions Involving Children

Law enforcement, corrections, and national security positions are exempt from fair chance hiring restrictions across the board. State ban-the-box laws typically add the same exemption, and most also exempt jobs involving unsupervised access to children, such as roles in schools and childcare facilities.

When the Employer Runs a Background Check

The Fair Credit Reporting Act governs the mechanics whenever an employer uses a third-party company to run a criminal background check, and it applies regardless of whether asking about criminal history was allowed at the application stage.

Before the check, the employer must provide a clear written disclosure in a standalone document that a background report will be obtained, and the applicant must give written authorization.⁹ Burying the disclosure inside a longer employment application or mixing it with other forms violates the law.¹⁰

If the report turns up something that might cost someone the job, the employer cannot simply move on. The FCRA requires a two-step process. First, a “pre-adverse action” notice that includes a copy of the report and a summary of the applicant’s FCRA rights, so the applicant can review the report and flag errors before a final decision. After a reasonable waiting period, the employer can send a final adverse action notice, which must include the name and contact information of the background check company, a statement that the company did not make the hiring decision, and notice of the right to dispute inaccurate information and request a free copy of the report within 60 days.¹¹

If You Were Rejected Because of Your Record

If an employer rejects you based on a background check, several rights kick in. Under the FCRA, the employer should have sent you the pre-adverse action notice with a copy of the report. If the report contains errors, you have the right to dispute the information directly with the background check company, which must investigate and correct any mistakes.¹¹

If you believe the employer applied a criminal record policy that disproportionately excludes people of your race or national origin, you can file a charge of discrimination with the EEOC or your local fair employment practices agency. Strict deadlines apply, so acting quickly matters. The EEOC does not charge for its services, and you do not need a lawyer to file.¹² If you live in a jurisdiction with a local fair chance hiring law, you may also be able to file a complaint with the city or state enforcement agency for a violation of that specific law.

What Employers Risk by Getting It Wrong

Employers who mishandle these inquiries face exposure on several fronts. Under Title VII, a court can order the employer to stop the practice, reinstate or hire the affected individual, and pay back wages, along with reasonable attorney’s fees for the prevailing party.¹³ FCRA violations open a separate door: individuals can sue for damages, and willful noncompliance triggers statutory damages and attorney’s fees. Class action FCRA suits over improper disclosures have produced multi-million dollar settlements. Ban-the-box violations can bring administrative fines that vary by jurisdiction. For most employers the real cost is the litigation itself, which is why building the process correctly is far cheaper than defending it later.

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. Office of Personnel Management (OPM). Issuance of Regulations on the Fair Chance to Compete for Jobs Act of 2019 – Guidance on Restrictions on Preemployment Criminal History Inquiries
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
U.S. Equal Employment Opportunity Commission. Questions and Answers About the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII
6
eCFR. Subpart L – Section 19 of the Federal Deposit Insurance Act (Consent To Service of Persons Convicted of, or Who Have Program Entries for, Certain Criminal Offenses)
7
Federal Register. Fair Hiring in Banking Act
8
Office of the Law Revision Counsel. 42 U.S. Code 1320a-7 – Exclusion of Certain Individuals and Entities From Participation in Medicare and Other Federal Health Care Programs
9
Office of the Law Revision Counsel. 15 U.S. Code 1681b – Permissible Purposes of Consumer Reports
10
Federal Trade Commission. Background Checks on Prospective Employees – Keep Required Disclosures Simple
11
Federal Trade Commission. Using Consumer Reports – What Employers Need to Know
12
U.S. Equal Employment Opportunity Commission. Arrest and Conviction Records – Resources for Job Seekers, Workers and Employers
13
U.S. Equal Employment Opportunity Commission. Title VII of the Civil Rights Act of 1964