Ban the box laws by state: 2026 guide for employers

Published: June 9, 2026 | Updated: October 2026 | Reading Time: 8 minutes | Author: Brent Ramey

Quick answer: About 37 states and Washington, D.C. have ban-the-box or fair chance hiring policies, along with more than 150 cities and counties. Most state laws cover only public jobs. Fifteen states extend the rules to private employers: California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. Texas does not have a statewide law. When a city or county rule is stricter than the state’s, follow the stricter one for that work location.

The Short Version

• 37 states, D.C. and 150+ cities and counties have ban-the-box or fair chance policies
• 15 states extend those rules to private employers
• Clean Slate laws in 13 states are automatically sealing records that used to be visible
• Major 2026 changes: Philadelphia (January), Washington State (July) and San Francisco (August)
• The federal FCRA applies nationwide; state and local laws layer on top
• Multi-state employers cannot apply one national policy to all candidates

Why Background Check Law Is So Complex in 2026

If you hire in multiple states — or even multiple cities — you’re operating in one of the most fragmented compliance environments in U.S. employment law.

The federal Fair Credit Reporting Act (FCRA) sets the baseline for how background checks must be conducted when using a third-party provider. But state and local laws layer on top, creating obligations that often go further than federal requirements and conflict with each other across jurisdictions.

For HR leaders operating in multiple states, the question is no longer if you need to review your criminal background screening policy, but how quickly you can update it. 2026 is shaping up to be a critical compliance checkpoint, with new ban-the-box, Clean Slate, and fair chance hiring legislation taking effect across the country.

About 267 million people, more than four-fifths of the U.S. population, live in a jurisdiction with some form of ban-the-box or fair chance policy, according to the National Employment Law Project. If you’re hiring anywhere near a major metro area, you are almost certainly subject to at least one of these laws, and likely several.

The Federal Baseline: What FCRA Requires Everywhere

Before diving into state law, it helps to understand what applies nationwide.

The FCRA requires any employer using a Consumer Reporting Agency (CRA — meaning a third-party background check provider) to:

1. Provide the candidate with a standalone written disclosure before running the check
2. Obtain written authorization from the candidate
3. Issue a pre-adverse action notice (with a copy of the report and FCRA Summary of Rights) before taking any negative action
4. Allow a waiting period (typically 5–7 business days) for the candidate to respond or dispute
5. Issue a final adverse action notice if proceeding

State and local laws build on top of this — they don’t replace it.

Ban-the-Box and Fair Chance Laws: The National Landscape

Ban-the-box laws (also called fair chance hiring laws) restrict when employers can ask about criminal history during the hiring process. These laws aim to reduce discrimination by allowing candidates to be evaluated on their skills and experience before criminal background checks or conviction inquiries occur.

As of 2026, 37 states and over 150 cities and counties have enacted some form of fair chance law. The federal Fair Chance Act applies to federal contractors and agencies, requiring employers to delay criminal history inquiries until after a conditional offer is made.

The key variable across these laws is timing — when can you ask about criminal history?

• Pre-application: Some of the strictest laws prohibit any criminal history inquiry until after a conditional offer
• Post-interview: Some laws allow inquiry after an interview but before an offer
• Post-conditional offer: The federal standard and an increasing number of states require waiting until after a conditional offer is extended
• Application stage (with limits): Some jurisdictions allow criminal history questions on the application but restrict what can be asked

Major 2026 law changes: what’s new

Philadelphia: effective January 6, 2026

Philadelphia amended its Fair Criminal Record Screening Standards ordinance. Employers can still consider convictions from the past seven years, but misdemeanors now drop off after four years. Summary offenses can’t be considered at all, and neither can sealed or expunged records, even if they show up on a report.

If a background check is mentioned, including in a job ad, the employer must say any review will be an individualized assessment. Before rejecting someone, the employer sends a written notice naming the convictions, a copy of the record, a summary of the person’s rights and how to submit evidence. The person gets 10 business days to respond. (Jackson Lewis)

What employers must do: Update adjudication criteria for the four-year misdemeanor window, add the individualized-assessment statement to job ads, and build the 10-business-day wait into the rejection process.

Washington State: effective July 1, 2026

Amendments to Washington’s Fair Chance Act push criminal history questions to after a conditional offer. They apply to employers with 15 or more employees from July 1, 2026, and to all employers from January 1, 2027. Before taking adverse action based on conviction history, the employer must conduct and document an individualized assessment. Civil penalties also increased. (Morgan Lewis)

Employers must also give applicants a written notice summarizing the law and a copy of the Attorney General’s guide when they say the job requires a post-offer background check, or when an applicant brings up their record in an interview.

What employers must do: Move criminal history questions after the offer, prepare the notice and the Attorney General’s guide, and document every individualized assessment.

San Francisco: effective August 10, 2026

Ordinance 128-26 amended San Francisco’s Fair Chance Ordinance. Employers can’t consider out-of-state convictions for conduct that is legal in California, such as abortion-related care or gender-affirming care. They must weigh the nature and gravity of the offense in an individualized assessment, and administrative penalties doubled to as much as $4,000 per affected person for repeat violations. (Accurate)

What employers must do: Update adjudication rules for out-of-state records, use the current Fair Chance Ordinance poster, and follow California’s state timing for the final adverse action notice where it is stricter.

Coming next

• Washington State, January 1, 2027: the amended rules reach employers of every size.
• Texas: a 2025 bill (HB 2466) would have banned criminal history questions on initial applications, but it never received a committee vote and did not become law. Texas still has no statewide ban-the-box law, though Austin has a local ordinance.

Clean Slate Laws: The Growing Complexity

Clean Slate laws represent one of the most significant recent shifts in background screening. Unlike ban-the-box laws — which regulate when you can ask — Clean Slate laws change what you can see by automatically sealing or expunging qualifying criminal records.

13 states have passed Clean Slate laws that automate record clearance, according to the Clean Slate Initiative. With the rise of Clean Slate laws, the background check report has become a dynamic, jurisdiction-specific snapshot of legally reportable history — not a complete historical record.

For employers, this means:

• A background check result that was visible last year may be sealed today
• Using a sealed record in a hiring decision exposes the employer to significant liability
• Your screening provider must stay current with Clean Slate implementation to ensure reports reflect only legally reportable records

States with Clean Slate laws include Pennsylvania, Michigan, Utah, Delaware, Connecticut and Virginia, among others. Implementation varies: Virginia’s sealing framework took effect July 1, 2026, Illinois’s automated sealing is set for 2029, New York’s begins in November 2027, and Washington, D.C.’s automatic sealing provisions are not yet in effect (Accurate).

State-by-State Snapshot: Key Requirements

Note: This is a summary overview. Laws change frequently — always verify current requirements with legal counsel for your specific jurisdictions.

What Multi-State Employers Must Do

For organizations hiring across multiple jurisdictions, a single national background check policy is a compliance liability.

Multi-state employers face three types of risk: Data Risk (Clean Slate — what records are legally reportable), Process Risk (Ban-the-Box timing — when you can ask), and Scope Risk (lookback period limits — how far back you can look).

The practical framework:

1. Know where each candidate will work. The applicable law is determined by the candidate’s work location — not your company’s headquarters. A candidate hired to work remotely from Washington State is subject to Washington State law even if your offices are in Texas.

2. Build a jurisdiction matrix. For every state and major metro area where you hire, document: the applicable ban-the-box timing requirement, any lookback period limits, individualized assessment requirements, and Clean Slate sealing obligations.

3. Use state-specific addenda. Your master background check policy should have jurisdiction-specific addenda that apply the correct rules to each location. Apply the most restrictive applicable law when multiple jurisdictions overlap.

4. Audit your adjudication criteria. Blanket disqualification policies based on criminal history are increasingly untenable. Every jurisdiction with a fair chance law requires individualized assessment — meaning your adjudication criteria must be role-specific and documented.

5. Keep your screening provider current. Your provider must stay on top of Clean Slate implementations to ensure they’re not reporting sealed records. Ask specifically how they handle newly sealed records in Virginia, D.C., Pennsylvania, and other Clean Slate states.

Individualized Assessment: The Requirement Behind Every Fair Chance Law

Nearly every state and local fair chance law — and EEOC guidance — requires employers to conduct an individualized assessment before taking adverse action based on criminal history. This means evaluating:

• The nature and gravity of the offense
• The time elapsed since the offense or completion of sentence
• The nature of the job and its relevance to the offense
• Evidence of rehabilitation
• The accuracy of the record

If a candidate’s background check returns a legally reportable conviction, your team cannot default to a blanket denial. The single most important step in mitigating legal risk — and your primary defense against claims of discriminatory hiring — is the individualized assessment.

Document this assessment for every adverse decision based on criminal history. It protects you from both negligent hiring claims and fair chance law violations simultaneously.

Frequently Asked Questions

Do background check laws vary by state? Yes, significantly. The federal FCRA sets a nationwide baseline, but 37 states and 150+ local jurisdictions have added their own requirements — governing when you can ask about criminal history, what records you can consider, how far back you can look, and what process you must follow before taking adverse action.

What is a ban-the-box law? A ban-the-box law prohibits employers from asking about criminal history on initial job applications or at certain early stages of the hiring process. The goal is to allow candidates to be evaluated on qualifications before criminal history is considered. Requirements vary by jurisdiction — timing, employer size thresholds, and covered record types all differ.

What is a Clean Slate law? A Clean Slate law automatically seals or expunges qualifying criminal records after a set period of time without reoffending. Records that have been sealed cannot be reported on background checks or used in hiring decisions. 14 states have active Clean Slate laws as of 2026.

Which states have the strictest background check laws? California, New York, Illinois, and Washington State are among the most restrictive — requiring post-conditional offer inquiry, individualized assessment, limited lookback periods, and extensive notice requirements. Philadelphia and New York City have additional local requirements beyond their state laws.

Can I use the same background check policy for all states? Not safely. A single national policy applied uniformly across all states will either under-comply in restrictive jurisdictions or over-restrict in permissive ones. Multi-state employers need a master policy with state-specific addenda addressing each jurisdiction’s particular requirements.

What is the lookback period for background checks? Lookback periods — how far back criminal history can be reported and considered — vary by state. California limits most criminal history to 7 years. Philadelphia now limits misdemeanor lookback to 4 years. Many states follow the FCRA’s 7-year limit for certain records. Always verify the applicable lookback period for each candidate’s work location.

Which states have ban-the-box laws for private employers? Fifteen states: California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. Cities such as New York City, Philadelphia and San Francisco add rules for private employers.

How many states have ban-the-box laws? About 37 states and Washington, D.C. have some ban-the-box or fair chance policy. Most cover only public jobs.

Does Texas have a ban-the-box law? No. A 2025 bill (HB 2466) would have kept criminal history questions off initial applications, but it never got a committee vote. Austin has a city ordinance, so check local rules.

Do ban-the-box laws stop employers from running background checks? No. They control when you can ask about criminal history, usually after an interview or a conditional offer. Many also require an individualized assessment and extra notice before you turn someone down.

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• FCRA Violations in Background Screening: How Employers Can Stay Compliant
• Marijuana and Drug Testing: What Employers Must Know in 2026
• How to Switch Background Check Providers