Employers have traditionally asked job applicants and employees to state whether they have any felony criminal convictions by checking a box yes or no. And employers in most states still inquire about felony criminal convictions—but thirteen states and the District of Columbia have enacted ban-the-box or chance-to-compete laws that prohibit employers from asking this question—at least in an initial job application. These states include California, Colorado, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. And more than 30 states have similar laws that apply to government employers.

The (federal) Equal Employment Opportunity Commission (EEOC) has stated that a rigid policy of inquiring about criminal convictions and denying employment on that basis may violate federal antidiscrimination laws, as such a policy may have a disparate impact on certain racial groups. The EEOC encourages employers to make the decision on a case-by-case basis after considering the nature of the job, the severity of the criminal offense, and the amount of time that has elapsed since the criminal conviction. Beginning in 2021, federal agencies and contractors may not inquire into an applicant’s criminal history until after a conditional offer has been made.

And many states have laws that prohibit employers from considering arrest records, as arrest records are distinct from conviction records and arrests are not a determination or adjudication of guilt. Laws regarding the ability of employers to ask job applicants and employees about arrest and criminal convictions vary from state to state and are generally located in a state’s statutes.

There are serious potential consequences to a job applicant or employee not disclosing a felony conviction when asked—including (1) loss of employment when the employer receives the results of a background check that includes the conviction, and (2) loss of unemployment benefits because the termination is for the employee’s untruthfulness.

In North Carolina, there is no statewide 'ban-the-box' law that applies to private employers, which means that employers may ask about felony convictions on initial job applications. However, North Carolina has implemented 'ban-the-box' policies for state government jobs, meaning that state agencies are restricted from asking about an applicant's criminal history on initial job applications. Employers in North Carolina must comply with federal guidelines set by the Equal Employment Opportunity Commission (EEOC), which discourage blanket policies against hiring individuals with criminal records and instead recommend a more individualized assessment. This approach takes into account the nature and gravity of the offense, the time that has passed since the conviction, and the relevance of the criminal history to the specific job in question. Additionally, federal law now prohibits federal agencies and contractors from asking about an applicant's criminal history until after a conditional job offer has been made. While North Carolina employers can inquire about felony convictions, they should be cautious about considering arrest records that did not lead to convictions, as this could potentially lead to discrimination claims. If an applicant or employee in North Carolina fails to disclose a felony conviction when asked, they could face termination and loss of unemployment benefits due to untruthfulness.