United States: Private-Sector Employers Doing Business With Local Governments May Be Subject To Even More Ban-The-Box And Other Laws Restricting Consideration Of Criminal Records

In 1998 Hawaii became the first state to pass a so-called "ban-the-box" law, prohibiting both private- and public-sector employers from inquiring about an applicant's conviction history until after the employer makes a conditional offer of employment. Massachusetts followed suit in 2010 by enacting a law barring private- and public-sector employers from asking applicants about their criminal history on an employment application. Since that time, more states, counties, and cities have passed laws that require covered private-sector employers to remove from employment applications questions about an applicant's criminal record and wait until later in the hiring process to present the inquiry to the applicant. Some of these laws also prohibit employers from ordering a criminal background check on a job applicant until after a conditional offer of employment has been made. In 2014 and 2015 alone, ban-the-box laws were passed in Oregon, New York City, San Francisco, the District of Columbia, New Jersey, Illinois, and one city and two counties in Maryland.1

Private-sector employers, particularly those operating nationally, have scrambled to revise employment applications and modify hiring processes to stay ahead of this movement. This can be somewhat challenging because the various laws are not consistent as to when an employer can legally ask the question or order a background check. Some jurisdictions allow an employer to inquire about criminal history after an interview, while other jurisdictions require that the employer wait until after making a conditional offer of employment. Some of these laws also require employers to conduct an "individualized review" before rejecting an applicant with a conviction record, which is similar to the review the Equal Employment Opportunity Commission (EEOC) recommends as a best practice.2 Finally, some of these laws require employers to provide certain notices above and beyond what the federal Fair Credit Reporting Act (FCRA) requires.

Additionally, certain ban-the-box or "fair chance" laws and ordinances that some mistakenly believe apply only to public sector employers, actually apply to private sector employers that do business or contract with state or city governments. At least 14 cities have enacted such laws, including: Boston (MA); Cambridge (MA); New Haven (CT); Hartford (CT); Worcester (MA); Detroit (MI); Richmond (CA); Atlantic City (NJ); Buffalo (NY); Indianapolis (IN); Louisville (KY); Rochester (NY); Syracuse (NY); and Pittsburgh (PA).

Like the most popular ban-the-box laws that apply to all private-sector employers in the state, county or city at issue, the laws that apply to private-sector employers acting as vendors or having contracts with state or city governments are inconsistent as to when the employer can inquire about a job applicant's criminal history, if at all, or what types of criminal information the employer can consider. For instance, in Louisville, Kentucky, city and county contractors cannot ask about prior convictions on job applications or in first-round interviews, unless the applicant offers the information voluntarily. In Hartford, Connecticut, the ordinance simply bars the city's vendors from inquiring about, and presumably considering, "any arrest or criminal accusation made against such person which is not then pending against that person and which did not result in a conviction."

On the other hand, since September, 2013, private-sector employers doing business with the City of Richmond, California are subject to onerous restrictions regarding inquiries about a job applicant's criminal history. Any private business with 10 or more employees, regardless of location, that receives financial assistance from the City or is a contractor or subcontractor with the City is prohibited from inquiring about an applicant's criminal history at any time, even post-hire, unless federal or state law requires a background investigation and only then, after a conditional offer has been made. Further, the City of Richmond limits consideration of criminal records into those that are "substantially job-related" and, for certain positions, may require the employer to submit its determination that the conviction is "substantially job-related" to the City Manager for consideration and approval.

In sum, private-sector employers, especially multi-state employers, should not assume they are subject only to the more popular ban-the-box laws, like the recent versions enacted in Oregon and New York City. Private-sector employers that do business or contract with local governments should further determine whether they are subject to separate restrictions on inquiries on and consideration of criminal history for employment purposes. If applicable, such employer should consider:

  • Revising job applications, interviewing guidelines and policies and procedures for background checks;
  • Revamping the sequencing and timing of events in the hiring process; and
  • Implementing guidelines and documentation that comply with these laws.

All private-sector employers should also continue to monitor new "ban-the-box" laws at the state, local, and now, the federal level. Indeed, on May 21, 2015, 70 members of the United States House of Representatives sent a letter to President Barack Obama urging him to "require that federal contractors and agencies refrain from asking job applicants to report their criminal history at the initial stages of the hiring process." (emphasis added) In 2015, ban-the-box laws have also been introduced in Georgia, Missouri, New Mexico, Ohio, Pennsylvania and Texas, in addition to legislation introduced in other jurisdictions that restricts the types of criminal records employers can consider for hiring and other employment decisions.

Finally, employers throughout the United States should continue to be mindful of developments in related areas of the law, including laws restricting the use of credit history information3 and the fair credit reporting laws.4


1. See Jennifer Mora, Jennifer Warberg and Philip Gordon, Oregon to Become the Latest State to Ban the Box, Littler ASAP (June 22, 2015); Jennifer Mora, David Warner, and Rod Fliegel, New York City Council Bans the Box, Littler Insight (June 12, 2015).

2. See Rod Fliegel, Barry Hartstein and Jennifer Mora, Two New EEOC Criminal Record Lawsuits Underscore Important Strategic and Practical Considerations for Employers Conducting Background Checks, Littler Insight (June 12, 2013).

3. See Jennifer Mora, David Warner and Rod Fliegel, New York City Council Passes the First Citywide Bill Restricting Employers from Using Credit Information in Employment Decisions, Littler Insight (Apr. 21, 2015).

4. See Rod Fliegel, Jennifer Mora and William Simmons, The Swelling Tide of Fair Credit Reporting Act (FCRA) Class Actions: Practical Risk-Mitigating Measures for Employers, Littler Report (Aug. 1, 2014).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Seyfarth Shaw LLP
Littler Mendelson
Sheppard Mullin Richter & Hampton
Fisher Phillips LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Seyfarth Shaw LLP
Littler Mendelson
Sheppard Mullin Richter & Hampton
Fisher Phillips LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions