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 Virginia, there is no statewide 'ban-the-box' law for private employers, which means that employers may ask about felony convictions on job applications. However, Virginia does have a 'ban-the-box' policy for state employment, which restricts state agencies from asking about criminal history on initial job applications. The policy aims to provide individuals with criminal records a fair chance at employment by delaying the background check inquiry until later in the hiring process. Additionally, the federal EEOC guidelines advise against blanket policies that deny employment based on criminal convictions, as they may disproportionately affect certain racial groups and could be considered discriminatory. Employers are encouraged to assess criminal history in relation to the job in question, the nature of the offense, and the time elapsed since the offense. As of 2021, federal agencies and contractors are also restricted from asking about criminal history until after a conditional job offer is made. While Virginia employers can inquire about felony convictions, they must be cautious about using this information, ensuring that their hiring practices comply with federal antidiscrimination laws. Failure to disclose a felony conviction when asked can lead to termination and potential ineligibility for unemployment benefits due to the employee's dishonesty.