Fair Chance & Ban-the-Box Laws: Know Your Rights
What employers can ask, when they can ask it, and what to do if they break the rules.
You've got a record. You're applying for jobs. And you're wondering: can they even ask me about this? When? What are they allowed to do with the information?
The answer depends on where you live, who you're applying to, and whether anyone's actually enforcing the rules.
I wrote this guide because I got tired of watching people get blindsided by questions they didn't have to answer — or get passed over by policies that were flat-out illegal. This breaks down the laws that protect you — federal, state, and local — so you know exactly where you stand.
What Is Ban the Box?
"Ban the Box" refers to laws that remove the criminal history checkbox from job applications. The "box" is that question: "Have you ever been convicted of a felony?"
These laws don't prevent employers from ever asking about your record. They change when they can ask — pushing the question later in the hiring process, after you've had a chance to show what you can actually do.
The idea is simple: let people compete on merit first, then address the record.
Federal Protections: What Applies Nationwide
The Fair Chance to Compete for Jobs Act (2019)
This federal law covers federal agencies and federal contractors. If you're applying for a government job or a job with a company that contracts with the federal government, this law protects you.
What it requires:
- No criminal history questions on the initial application
- No background checks until after a conditional job offer
- Exceptions for law enforcement, national security, and positions that legally require background checks
What it doesn't cover:
- Private employers (unless they're federal contractors)
- State or local government jobs (those follow state/local rules)
EEOC Guidance on Criminal Background Checks
The Equal Employment Opportunity Commission (EEOC) issued guidance in 2012 that still applies today. It doesn't ban criminal history questions outright, but it sets limits on how employers can use your record.
Key rules:
- Employers can't use arrest records alone to disqualify you — an arrest isn't proof you did anything
- Policies must be "job related and consistent with business necessity"
- Blanket "no felons" policies can be illegal if they cause disparate impact on protected groups (particularly racial minorities, who are disproportionately affected by the criminal justice system)
- Employers should conduct an individualized assessment before rejecting someone based on a record
The three-factor test:
When deciding whether a conviction disqualifies someone, employers should consider:
- Nature and gravity of the offense
- Time that has passed since the offense or completion of sentence
- Nature of the job and its duties
If there's no clear connection between your conviction and the job, rejecting you may be discriminatory.
Is There a Federal Ban the Box for Private Employers?
No. As of 2026, there's no federal law requiring private employers to Ban the Box. That's left to states and cities. I wish it were different, but that's the reality right now.
State-by-State: Where You're Protected
As of 2025, 37 states and over 150 cities/counties have some form of Ban the Box or fair-chance hiring policy — at least for public (government) employers.
But the protections vary wildly depending on where you live. I've seen people assume they're covered when they're not, and I've seen people give up rights they actually had. Here's the breakdown.
States That Cover Private Employers
These 15 states extend Ban the Box protections to private employers (not just government jobs):
| State | Key Requirements |
|---|---|
| California | Employers with 5+ employees can't ask until after conditional offer; requires individualized assessment and written notice before rejection |
| Colorado | No criminal history questions on initial applications; can't advertise "no felons" |
| Connecticut | No criminal history questions on initial job applications |
| Hawaii | Inquiry only after conditional offer; limits to recent, job-related convictions |
| Illinois | Delays inquiry until after interview or conditional offer |
| Maine | Removes question from initial applications |
| Maryland | Removes question from initial applications |
| Massachusetts | Removes question from initial applications |
| Minnesota | Removes question from initial applications |
| New Jersey | Removes question from initial applications |
| New Mexico | Removes question from initial applications |
| Oregon | Removes question from initial applications |
| Rhode Island | Removes question from initial applications |
| Vermont | Removes question from initial applications |
| Washington | Removes question from initial applications |
Major cities with strong protections:
- New York City
- Philadelphia
- Los Angeles (city and county)
- Washington, D.C.
- Seattle
- San Francisco
States with the Strongest Protections
California's Fair Chance Act is considered one of the toughest in the country:
- Covers all employers with 5+ employees
- No conviction questions until after conditional offer
- Can't consider arrests that didn't lead to conviction, sealed/expunged records, or juvenile records
- Requires written individualized assessment
- Must give applicant written preliminary decision, copy of background report, and at least 5 business days to respond
- Must provide final written decision
New York City's Fair Chance Act has similar requirements plus administrative enforcement with real teeth.
Los Angeles County's 2024 Fair Chance Ordinance added fines of $5,000 to $20,000 per violation plus a private right of action (meaning you can sue).
States with NO Ban the Box Protections
These states have no statewide Ban the Box law as of late 2025:
- Alabama
- Alaska
- Arkansas
- Florida
- Idaho
- Mississippi
- North Dakota
- South Carolina
- South Dakota
- Wyoming
If you're in one of these states, employers can ask about your criminal history at any point — on the application, in the interview, whenever they want. Your only protection is EEOC guidance against discriminatory blanket policies.
Note: Even in these states, some cities or counties may have their own local ordinances. Check your specific location.
Wisconsin: What You Need to Know
Wisconsin is a mixed bag. I work with a lot of people here, so I want to be really specific about what's protected and what's not.
Public vs. Private Employers
Public employers (state government jobs):
Wisconsin removed conviction questions from state job applications in 2016. Criminal history checks happen later in the process, after you're certified for the position.
Private employers:
No statewide Ban the Box law. Private employers in Wisconsin can ask about your criminal history at any stage of the application process.
The "Substantially Related" Standard
This is where Wisconsin actually does protect you, and it's important. Under Wisconsin law (Wis. Stat. §111.335), it's illegal to discriminate based on arrest or conviction record — with an important exception.
Employers can refuse to hire you based on a conviction only if the conviction is "substantially related" to the job.
What "substantially related" means:
There must be some overlap between the circumstances of the offense and the circumstances of the job. Examples:
- Theft conviction → cashier position = substantially related
- OWI conviction → truck driver position = substantially related
- Drug conviction → warehouse worker position = probably NOT substantially related
Courts and the Department of Workforce Development look at:
- Nature of the offense
- Context of the job
- Time since the offense
- Your age when it happened
- Evidence of rehabilitation
Bottom line: An employer can't refuse to hire you just because you have a felony. They have to show the specific conviction relates to the specific job. I've seen people not know this and just accept the rejection. Don't be that person.
Arrests vs. Convictions
Wisconsin draws a clear line:
Arrests: Employers cannot refuse to hire you based on an arrest record. Period. They can consider the underlying conduct only if it's substantially related to the job AND they have actual evidence — not just the fact that you were arrested.
Convictions: Employers can consider convictions, but only if substantially related to the job.
Pending charges: Employers can consider pending charges if substantially related, but they can't treat a pending charge as proof of guilt.
Local Ordinances
Madison and Dane County have their own Ban the Box policies for local government jobs, removing conviction questions from initial applications.
No Wisconsin cities currently extend Ban the Box to private employers.
Pending Legislation
Bills have been proposed to extend Ban the Box to private employers in Wisconsin, but as of early 2026, none have passed.
What Employers Can and Can't Do
When Can Employers Ask About Criminal History?
| Jurisdiction | When They Can Ask |
|---|---|
| Strong Ban the Box states (CA, HI, WA, NJ, etc.) | Only after conditional job offer |
| Moderate Ban the Box states | After interview or after determining you're otherwise qualified |
| Federal jobs/contractors | Only after conditional job offer |
| Wisconsin private employers | Anytime (but can only reject if substantially related) |
| States with no protections | Anytime |
What Is "Individualized Assessment"?
This is a big one, and most people don't know about it. When laws or EEOC guidance require an "individualized assessment," employers must consider:
- Nature and gravity of the offense — Was it violent? Property crime? How serious?
- Time elapsed — How long ago? Have you stayed clean since?
- Nature of the job — What are the actual duties? What access/responsibility does the role involve?
They must also give you a chance to explain: provide context, show rehabilitation, correct errors in the background report, or offer references.
This isn't optional in strong fair-chance jurisdictions — it's required before they can reject you. If they skip this step, they've already broken the rules.
Can Employers Have "No Felons" Policies?
Generally, no.
EEOC guidance says blanket exclusions can cause illegal disparate impact. Many state and local laws explicitly prohibit blanket bans and require case-by-case assessment.
Exceptions: Some positions are legally restricted. Certain healthcare, childcare, financial, and security roles have statutory bars for specific convictions. In those cases, the employer isn't choosing to exclude you — the law requires it.
Can Employers Consider Arrests?
Usually no.
- EEOC guidance: Arrests alone aren't proof of conduct and shouldn't be automatic disqualifiers
- Wisconsin law: Employers can't refuse to hire based on arrest record
- California and other strong states: Employers can't consider non-conviction records at all
Can Employers Rescind a Job Offer After a Background Check?
Yes, but in fair-chance jurisdictions they must follow a process:
- Conditional offer — They offer you the job pending background check
- Background check — They run your record
- Individualized assessment — They evaluate whether the conviction is job-related
- Preliminary decision — If they're considering withdrawal, they must give you written notice
- Your response — You get time (typically 5+ business days) to respond with corrections, context, or evidence of rehabilitation
- Final decision — They issue a final written decision
Under the federal Fair Credit Reporting Act (FCRA), if they use a third-party background check company, they must also give you:
- Pre-adverse action notice
- Copy of the background report
- Summary of your rights under FCRA
- Adverse action notice after final decision
What to Do If Your Rights Are Violated
If you think an employer broke the rules, here's what I tell people to do — in order.
Step 1: Document Everything
Save copies of:
- Job applications
- Emails and correspondence
- Any written decisions or rejections
- The job posting (screenshot it)
- Your background report (request a copy)
Step 2: File a Complaint
Where to file depends on the violation:
| Type of Violation | Where to File |
|---|---|
| Federal job or contractor | The hiring agency, or OPM |
| California Fair Chance Act | California Civil Rights Department (CRD) |
| NYC Fair Chance Act | NYC Commission on Human Rights |
| Los Angeles County | Department of Consumer and Business Affairs (DCBA) |
| Wisconsin discrimination | Wisconsin DWD Equal Rights Division |
| EEOC/Title VII violation | EEOC (if pattern suggests discrimination) |
Step 3: Understand Potential Remedies
Depending on jurisdiction and violation, remedies can include:
- Back pay for wages you would have earned
- Reinstatement or hiring
- Compensatory damages
- Administrative fines against the employer ($5,000-$20,000+ per violation in some jurisdictions)
- Policy changes required of the employer
- Attorney's fees if you prevail
Step 4: Consider Legal Help
If you believe you have a strong case — especially if there's a pattern of discrimination or significant damages — talk to an employment attorney. Many offer free consultations, and some fair-chance laws allow you to recover attorney's fees if you win. I'm not a lawyer, but I've pointed enough people in this direction to know it's worth the phone call.
Do These Laws Actually Work?
I'm going to be straight with you: it depends.
What the Research Shows
A 2025 study in the Journal of Public Economics found that at one large employer, Ban the Box had "little or no association" with hiring rates for candidates with records.
A 2024 Cato Institute analysis of national data found "no meaningful effect" — positive or negative — on employment rates overall.
Earlier studies found modest positive effects in some contexts (public sector, low-wage jobs in high-crime areas) but raised concerns about statistical discrimination — the theory that when employers can't ask about records, they may discriminate based on race instead.
What Does Work
Research from the National Employment Law Project suggests fair-chance policies do increase interview opportunities when combined with:
- Strong enforcement (real penalties, not just paper rules)
- Individualized assessment requirements (forcing case-by-case review)
- Complementary supports (record-clearing, training, employer incentives)
Bottom line: Ban the Box alone doesn't guarantee you'll get hired. But it gives you a better shot at getting in the door — and legal recourse if employers break the rules. I'll take "better shot" over "no shot" every time.
Frequently Asked Questions
Does Ban the Box mean employers can't ask about my record?
No. It means they can't ask on the initial application. They can still ask later — after an interview, after determining you're qualified, or after a conditional offer, depending on the jurisdiction.
I'm in Wisconsin. Can a private employer ask about my felony on the application?
Yes. Wisconsin doesn't have Ban the Box for private employers. But they can only reject you if the conviction is "substantially related" to the job.
What if an employer has a "no felons" policy?
That policy may be illegal. EEOC guidance and many state/local laws prohibit blanket exclusions. If you're rejected solely because of a felony without any assessment of job-relatedness, you may have grounds for a complaint.
Can employers ask about arrests?
Generally no. EEOC guidance says arrests alone shouldn't disqualify you. Wisconsin law prohibits discrimination based on arrest records. Strong fair-chance states prohibit considering non-conviction records entirely.
What's the difference between "substantially related" and "individualized assessment"?
Substantially related (Wisconsin's standard): The conviction must have some connection to the job duties for the employer to consider it.
Individualized assessment (EEOC/strong states): The employer must evaluate your specific circumstances — nature of offense, time elapsed, job duties — and give you a chance to respond before rejecting you.
Can I be fired if my employer finds out about my record after I'm hired?
It depends. If you lied on the application, that's usually grounds for termination. If you disclosed truthfully or weren't asked, firing you based on record alone could be discriminatory in jurisdictions with fair-chance protections.
How do I file a complaint in Wisconsin?
Contact the Wisconsin DWD Equal Rights Division. You can file a complaint if you believe an employer discriminated against you based on arrest or conviction record in violation of Wisconsin law.
Do Ban the Box laws apply to all jobs?
No. Most have exceptions for:
- Law enforcement and corrections
- Positions working with children or vulnerable adults
- Jobs requiring security clearances
- Roles where specific convictions are legally disqualifying
The Bottom Line
Ban the Box and fair-chance laws won't erase your record. They won't guarantee you a job. But they give you something real:
- A fairer shot — You get evaluated on what you can do before your past comes up
- Legal protection — Employers can't use blanket "no felons" policies without consequence
- A process — In strong jurisdictions, employers must assess your situation individually and let you respond
- Recourse — If employers break the rules, you can file complaints and potentially recover damages
Know your rights. Know the rules in your state. And if someone violates them, push back. That's what the laws are there for.
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Last Updated: February 2026
Sources: National Employment Law Project (NELP), EEOC Enforcement Guidance 915.002, California Civil Rights Department, Wisconsin DWD, OPM Fair Chance Act Guidance (2024), Los Angeles County DCBA, Journal of Public Economics (2025), Cato Institute (2024)