In September 2025, Texas — not typically associated with expansive worker protection legislation — became the latest US state to adopt a statewide Ban the Box law. Effective for employers with fifteen or more employees, it prohibits criminal history inquiries until after a candidate has been deemed otherwise qualified, typically following an interview or conditional offer.
Texas was joining a list that now includes 37 states and over 150 cities and counties. More than four-fifths of the US population lives in a jurisdiction with some form of fair chance hiring law. The checkbox — the literal box on job applications asking about criminal convictions — has been removed from the applications of most major employers for years.
And yet, employment law attorneys who work in this space will tell you that Ban the Box compliance is generating more enforcement activity, litigation, and operational friction in 2026 than it did when the laws first passed. The reason is straightforward: the checkbox was the easy part. What came after it is considerably more demanding.
From Removing the Box to Regulating the Process
The original Ban the Box concept was simple: don’t ask about criminal history on the application. Give people with records a fair chance to be evaluated on their qualifications before their record enters the picture.
The laws that built on that concept are not simple. They regulate timing, substance, procedure, documentation, and in some cases the content of decision-making. The difference between a first-generation Ban the Box law and what Washington State is implementing in July 2026 is the difference between “don’t ask about convictions on the application form” and a comprehensive framework governing every step of how criminal history can be considered across the entire employment relationship — including promotions and role changes for existing employees.
Understanding the full scope of what these laws now require means looking at their key provisions systematically.
Timing: When the Check Can Happen
The most fundamental requirement in fair chance hiring law is timing. In jurisdictions with conditional offer requirements — which now includes most major US employment markets — background checks involving criminal history may not be ordered until after a conditional offer of employment has been extended.
The practical implication is that criminal history screening must sit after the candidate has been assessed for qualifications and a decision to proceed has been made. This represents a genuine sequencing constraint for employers whose hiring workflows were designed around running checks earlier in the process — often at the point of application or first interview.
The timing requirement reflects the law’s underlying intent: a candidate should have the opportunity to be evaluated on their merits before their record enters the picture. Early ordering of criminal history checks defeats this purpose regardless of whether the application form itself is compliant.
For multi-jurisdictional employers, the timing question is complicated by the fact that some jurisdictions have conditional offer requirements and some do not. Texas, for example, requires the employer to wait until after the candidate is deemed “otherwise qualified” — typically post-interview — but does not require a formal conditional offer before the check is ordered. New York City requires a conditional offer. California’s employer obligations are triggered at the conditional offer stage for most private employers. The patchwork is genuine, and managing it requires jurisdiction-aware process design rather than a single national workflow.
Lookback Periods: What History Can Be Considered
Even in jurisdictions where a criminal record may be considered, the law frequently limits how far back employers can look. These lookback periods vary by jurisdiction and by offence type — and they have been tightening.
The federal Fair Credit Reporting Act sets a baseline of seven years for most adverse information, with an exception for positions paying above a specified salary threshold. Many state and local laws set more restrictive standards.
Philadelphia’s January 2026 amendment to its Fair Criminal Record Screening Standards Ordinance is the most recent and significant example. The amendment reduced the lookback period for misdemeanour convictions from seven years to four. Felony convictions remain subject to a seven-year lookback. Summary offences — minor infractions below the misdemeanour level — are completely prohibited from consideration regardless of when they occurred.
The operational consequence for employers hiring in Philadelphia is immediate: a misdemeanour conviction from five years ago, which could have been considered under the previous rules, cannot be considered under the January 2026 rules. An employer still applying a seven-year standard to misdemeanours is operating under superseded law.
The direction of travel in this area is toward shorter lookback periods and narrower categories of permissible offences. Compliance requires not just knowing the rule when it is first adopted but tracking subsequent amendments — which, as Philadelphia demonstrates, can change the applicable standard significantly.
Clean Slate: The Records That Have Legally Ceased to Exist
Parallel to the expansion of fair chance hiring laws, Clean Slate legislation has been quietly changing what background checks are legally permitted to return — and what employers are permitted to act on.
Clean Slate laws provide for the automatic sealing of certain criminal records after a specified period of good behaviour, without requiring the individual to file a petition. Pennsylvania pioneered this approach in 2018. As of 2026, multiple states including California, Michigan, New Jersey, and New York have adopted some form of automatic record sealing, with more under consideration.
What this means practically: a background check run today may not return records that would have appeared on the same check eighteen months ago — not because the records were inaccurate, but because they have been automatically sealed under a Clean Slate law that came into effect in the interim.
This creates two distinct compliance risks for employers.
The first is using sealed records that do appear. Background screening providers have obligations to follow “maximum possible accuracy” standards under the FCRA, but sealed records sometimes surface in check results due to database update lags. An employer who takes adverse action based on a conviction that has been legally sealed has made an employment decision on the basis of information they were not entitled to use — with potential liability under both the FCRA and applicable state law.
The second is responding consistently when checks return clean results. If a candidate’s record has been sealed and the check returns nothing, that is the legally correct outcome. Hiring managers accustomed to seeing adverse information in certain circumstances may now be surprised by clean results. The process must be designed to treat a clean check result — including one that may reflect a sealed record — as a clean check result.
Washington State’s July 2026 Expansion: The New Compliance Frontier
The most significant development in the fair chance hiring space scheduled for 2026 is Washington State’s expansion of its Fair Chance Act, effective July 1, 2026.
Washington’s original 2018 Fair Chance Act, like most fair chance laws, focused on new hires — restricting criminal history inquiries until after the employer had determined the candidate was otherwise qualified. The July 2026 expansion does something no major state law has done before at scale: it extends the same framework to existing employees being considered for promotions, role changes, or other employment actions.
For HR teams, this creates an entirely new compliance surface. The processes built for new hire screening do not automatically transfer to internal mobility decisions. Questions arise immediately: at what point in an internal promotion process does criminal history become permissible to consider? What does the individualised assessment requirement mean for a manager recommending a long-tenured employee for a senior role? What adverse action notice procedures apply when the decision involves an existing employment relationship?
The Washington expansion also strengthens its adverse action procedures. Employers must now provide a first notice identifying the specific conviction under consideration and hold the position open for at least two business days. If FCRA adverse action procedures are being followed concurrently, the holding period extends to five business days. The candidate must be given a meaningful opportunity to provide evidence of rehabilitation, good conduct, or the inaccuracy of the information before a final decision is made.
Employers with significant Washington State workforces who have not begun planning for the July 2026 implementation are behind schedule.
The Patchwork Problem: Multi-Jurisdictional Compliance
For employers operating across multiple states — which, for any national company, means virtually all of them — the fair chance hiring compliance landscape is a genuine patchwork. The laws vary on almost every dimension: which employers are covered, which employees, what timing is required, what lookback periods apply, which offences are excluded entirely, what the adverse action procedure requires, what documentation must be retained.
The instinctive response to this complexity is to try to maintain jurisdiction-specific workflows — different processes for California hires, New York hires, Philadelphia hires, and so on. The problem with this approach is that it depends on recruiters and hiring managers knowing which jurisdiction-specific process applies to every hire, executing it correctly without supervision, and doing so consistently under the time pressure of a live hiring process.
The more robust approach — recommended by compliance attorneys working in this space — is to design one consistent national hiring sequence built around the most demanding requirements, and layer jurisdiction-specific variations on top where they impose more permissive standards. In practice, this typically means: no criminal history inquiry before conditional offer, regardless of jurisdiction; individualised assessment for every adverse action based on criminal history, regardless of jurisdiction; documented adverse action procedures that meet or exceed the most demanding applicable standard.
This approach creates a process that is somewhat more demanding than strictly necessary in the less-regulated jurisdictions, but considerably more defensible across the full portfolio. For organisations hiring across twenty states, the alternative — attempting to track and correctly apply twenty different sets of rules in real time — is both operationally impractical and a source of compounding exposure when errors occur.
The Enforcement Trajectory
It is worth being direct about the enforcement environment. Fair chance hiring laws were, for several years after their adoption, under-enforced relative to the obligations they imposed. Companies that hadn’t updated their processes were operating in a relatively low-risk environment.
That environment is changing. The expansion of these laws into more jurisdictions, the tightening of lookback periods, and the broadening of coverage to internal employment decisions signals legislative intent that is moving toward more robust enforcement, not less. Plaintiff’s employment attorneys are actively litigating fair chance violations — both direct claims by individual applicants and class actions alleging systematic non-compliance.
The practical signal for employers: the gap between “technically required” and “commonly enforced” that existed in this space for several years is narrowing. The appropriate response is to treat fair chance compliance with the same rigour as FCRA compliance — not as a policy aspiration, but as an operational requirement.
AMS Inform provides background verification and workforce screening services across 160+ countries. For organisations reviewing their screening compliance frameworks, speak to our team at AMSinform.com.
