Fair chance hiring means evaluating job candidates on their qualifications first and considering criminal history later, and only when it is relevant to the job. “Ban the box” laws put that into practice by delaying conviction questions, often until after a conditional offer. For recruitment marketers, the impact reaches job ad copy, apply flows, and any advertising that runs across jurisdictions with different rules.
This article is general information, not legal advice. Laws change and vary by location, so confirm requirements with qualified counsel.
What Is Fair Chance Hiring and What Does “Ban the Box” Mean?
Fair chance hiring is an approach in which employers delay and limit the use of criminal history in hiring decisions. The name “ban the box” comes from the checkbox that once appeared on many applications asking, “Have you ever been convicted of a crime?” The National Employment Law Project (NELP), which tracks these laws, describes the movement as one aimed at removing that barrier from the first stage of hiring.
Most laws share a few building blocks: no conviction questions on the initial application, a delay until later in the process, and a structured review when a record is considered. Many also require a notice to the candidate before a final decision is made.
What Does Federal Law Say About Fair Chance Hiring?
Three federal frameworks matter most.
- The Fair Chance to Compete for Jobs Act. Congress enacted it as part of the National Defense Authorization Act for Fiscal Year 2020, signed December 20, 2019. Its core provision, codified at 5 U.S.C. 9202, generally bars federal agencies from asking civil service applicants for criminal history record information until a conditional offer is extended, with exceptions such as law enforcement positions. The provision took effect two years after enactment, in December 202. The Office of Personnel Management’s implementing rule took effect October 2, 2023, and the Act also covers federal contractors acting on an agency’s behalf.
- Title VII and EEOC guidance. The EEOC’s 2012 Enforcement Guidance explains that a criminal record exclusion can have a disparate impact based on race or national origin, and that employers must be able to show a policy is “job related for the position in question and consistent with business necessity.” It points to three Green factors: the nature and gravity of the offense, the time since the offense or sentence, and the nature of the job. It also describes an individualized assessment, where the candidate is told a record may lead to exclusion and can explain why it should not apply.
- The Fair Credit Reporting Act (FCRA). When an employer uses a background screening company, the EEOC summarizes the basics: a stand-alone written disclosure, written authorization, a pre-adverse action notice with a copy of the report and a summary of rights, and a final adverse action notice.
A 2026 development to watch
In April 2025, Executive Order 14281 set a federal policy of eliminating disparate-impact liability and directed agencies, including the EEOC, to deprioritize enforcing disparate-impact provisions. In October 2026, trade press reported that the EEOC sent a final rule to the White House that would rescind its 2012 criminal records guidance. As of this writing, that rule has not been reported as final. Even if the guidance is rescinded, Title VII itself remains law, and the state and local laws below are unaffected.
How Do State and Local Ban-the-Box Laws Differ?
State and local law is where most day-to-day compliance work happens. NELP’s fair chance hub (last modified December 2025) reports that 37 states, nearly 200 cities and counties, and the federal government have adopted fair chance policies for public employment, while 15 states, the District of Columbia, and 21 cities and counties apply them to private employers. Those counts shift as laws pass, so check the tracker before you publish a figure of your own.
Rules differ on who is covered, when a criminal history question is allowed, and what must happen before an adverse decision. A few examples:
| Jurisdiction | Who is covered | Key rule (summary) |
|---|---|---|
| Federal (5 U.S.C. 9202) | Federal agencies and contractors acting on their behalf | No criminal history request before a conditional offer, with exceptions |
| California | Employers with 5 or more employees | Generally no conviction history questions before a job offer |
| New York City | Most employers | Job postings, applications, and interviews cannot include criminal record inquiries |
| Washington State | Employers with 15 or more employees from July 1, 2026; smaller employers from January 1, 2027 | Inquiries only after a conditional offer, no ads that exclude people with records, documented assessment and notices before adverse action |
The takeaway: there is no single national standard for private employers. A job that is advertised in several states may be subject to several rule sets at once.
What Does Fair Chance Mean for Job Ad Copy?
Job ad language is the part of this topic that recruitment marketers control directly. Washington’s statute is explicit: employers may not advertise openings in a way that excludes people with criminal records, and it names messages like “no felons” or “no criminal background” as prohibited. Washington’s 2025 amendments, effective in 2026, add a prohibition on policies that automatically or categorically exclude people with a record. Separately, the EEOC’s 2012 guidance describes blanket exclusions as inconsistent with the Green factors.
| In job ads, do | In job ads, avoid |
|---|---|
| Describe the actual duties and requirements of the role | “No felons” or “no criminal record” |
| Say that background checks, where used, happen after a conditional offer and follow applicable law | Blanket exclusions that are not tied to the job |
| Link to a fair chance policy statement where one exists | Conviction questions in the posting or in screening questions |
| Have counsel approve template language by jurisdiction | Copying one template across every location without review |
If a role legally requires a background check or restricts people with certain records (for example, because of a federal or state requirement), have counsel approve the wording instead of drafting it yourself. Our job posting compliance checklist is a useful starting point for building a review step into your posting process.
How Should the Apply Flow Handle Criminal History Questions?
Where laws require it, the initial application should not ask about convictions. That includes screening questions added by an applicant tracking system or an ad platform’s lead form. Review every field a candidate sees before the conditional offer, and make sure any conviction question is switched off for covered locations. Candidates who feel unwelcome at this stage often leave, so a clean flow also supports completion rates. For practical ideas, see our guide to career site best practices and apply conversion.
Once a record is considered after an offer, employers generally need a documented, job-related review. Because the EEOC guidance links criminal record screens to disparate impact, it also helps to monitor outcomes. Our explainer on adverse impact and the four-fifths rule covers one common way to do that.
What Does Fair Chance Compliance Mean for Programmatic Job Advertising?
Programmatic job advertising publishes one job across many channels, often by location. That scale creates three practical checkpoints:
- Feed and template fields. Job descriptions in feeds are reused across publishers. If a description contains exclusionary language, it will spread everywhere the job is distributed. Fix it at the source.
- Geo-based rules. Because requirements vary by jurisdiction, ad copy and apply paths for a New York City role may differ from those for a role in a state with no private-employer law. Segmenting by location lets teams apply the right template.
- Ownership. Decide who in legal, HR, and recruitment marketing approves template language and who owns updates when a law changes.
A programmatic platform such as Joveo distributes jobs across channels, so a clean feed and reviewed templates upstream make downstream compliance easier to manage.
Frequently Asked Questions
What is fair chance hiring in simple terms?
It is hiring that looks at qualifications first and considers criminal history later, only where it is relevant to the job, usually after a conditional offer.
What is a conditional offer?
A job offer that depends on passing certain checks, such as a background check where permitted. Many ban-the-box laws, including the federal Act for agency hiring, allow criminal history inquiries only after this point.
Does ban the box mean employers can never consider a criminal record?
No. The laws generally change when and how a record is considered, not whether it can ever matter. Exceptions exist for certain roles, and some laws require a job-related review before an adverse decision.
Can a job ad say “no felons”?
In places like Washington State, no: the statute prohibits ads that exclude people with criminal records. Because rules vary and blanket exclusions create Title VII risk, most teams avoid such language entirely and consult counsel.
Is the EEOC’s 2012 criminal records guidance still in effect?
The guidance remains on the EEOC’s website. In October 2026, trade press reported that a final rule to rescind it was sent to the White House for review, and it had not been reported as final at the time of writing. Title VII and state laws still apply.
