When a hiring team must decide when an application or interview may ask about convictions, the first step is checking whether a specific local or state law restricts the timing of that inquiry. If the job is in Washington, or the employer is among most New York City employers, the application cannot contain a criminal-history question before a conditional offer; California bars a conviction-history question, and bars inquiring into or considering conviction history, before that offer. These rules shift the moment of inquiry to a later stage in the hiring process, specifically after a conditional offer has been made. Washington also bars an oral or written inquiry, a criminal history background check, and otherwise obtaining criminal-record information before the conditional offer.
Key takeaways before you send the next application
- Remove conviction questions from the application form. Under California law, an employer may not inquire into or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant ( leginfo.legislature.ca.gov.)
- Do not reject applicants for non-disclosure before an offer. A Washington employer may not reject an applicant for failure to disclose a criminal record prior to receiving a conditional offer of employment ( Washington State Legislature).
- Treat arrest records as insufficient evidence. The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity ( U.S. Equal Employment Opportunity Commission).
- Update your interview scorecards. Use your Interview Scorecard Example for Consistent Hiring Teams to track applicant qualifications without referencing arrest records during the initial screening phase.
- Document your decision process. Once a conditional offer is made and a conviction is considered, use a Hiring Decision Debrief: Notes to a Recorded Decision to record the specific job-related factors that influenced the final decision.
Do not put a conviction question on the application when one of these laws applies
Remove any question seeking disclosure of conviction history from the application form if the position is located in Washington, California, or New York City. The application must focus on qualifications and eligibility for the role without probing into criminal records. Under RCW 49.94.010, an employer may not include any question on any application for employment, inquire either orally or in writing, receive information through a criminal history background check, or otherwise obtain information about an applicant's criminal record until after the employer initially determines that the applicant is otherwise qualified for the position and makes an offer of employment conditioned on obtaining the applicant's criminal record ( Washington State Legislature). This means the initial screening and interview phases must proceed without knowledge of the applicant's criminal history.
Similarly, California Code, GOV 12952 prohibits including on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history ( leginfo.legislature.ca.gov.). The restriction here is specifically tied to the timing of the conditional offer. Until that offer is extended, the application cannot solicit this information. For employers operating in New York City, the Fair Chance Act makes it an unlawful discriminatory practice for most employers, labor organizations, and employment agencies to inquire about or consider the criminal history of job applicants prior to extending a conditional offer of employment ( NYC Commission on Human Rights). This rule covers both direct inquiries and the consideration of criminal history data before the offer stage.
What an arrest record does and does not prove
The federal baseline for evaluating criminal history starts with a clear distinction between an arrest and a conviction. According to the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act | U.S. Equal Employment Opportunity Commission, the fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity ( U.S. Equal Employment Opportunity Commission). This means that if a background check reveals an arrest that did not lead to a conviction, you cannot use that record alone to reject an applicant. The guidance explicitly states that an arrest record standing alone may not be used to deny an employment opportunity ( U.S. Equal Employment Opportunity Commission).
However, the presence of an arrest record is not a complete barrier to making a decision. The same guidance notes that an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question ( U.S. Equal Employment Opportunity Commission). This creates a two-step evaluation process for your hiring team. First, you must determine if there is a conviction. If there is no conviction, you cannot rely on the arrest itself as a reason for exclusion. Second, if you choose to consider the underlying conduct of the arrest, you must assess whether that specific conduct renders the applicant unfit for the specific role.
When Washington, California, and New York City let you ask
Washington State Legislature rules prohibit employers from including any question on an application, inquiring orally or in writing, or otherwise obtaining information about an applicant's criminal record until after the employer initially determines that the applicant is otherwise qualified for the position and makes an offer of employment conditioned on obtaining the applicant's criminal record ( Washington State Legislature). This timing requirement means the conviction question cannot appear on the initial application form for roles covered by this statute. Additionally, Washington State Legislature guidance states that job ads that state "no felons," "no criminal background," or otherwise convey similar messages are prohibited ( Washington State Legislature). If your recruitment team is drafting job descriptions for positions in Washington, review the language to ensure it does not convey a blanket exclusion based on criminal history.
California Legislative Information outlines specific prohibitions under California Code, GOV 12952. The law forbids including on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history ( leginfo.legislature.ca.gov.). Furthermore, California Code, GOV 12952 prohibits inquiring into or considering the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant ( leginfo.legislature.ca.gov.). For hiring managers in California, this means the interview process and initial screening must focus on qualifications unrelated to conviction history until a conditional offer is extended.
The NYC Commission on Human Rights notes that the Fair Chance Act makes it an unlawful discriminatory practice for most employers, labor organizations, and employment agencies to inquire about or consider the criminal history of job applicants prior to extending a conditional offer of employment ( NYC Commission on Human Rights). This rule applies specifically to New York City employers and agencies. When managing applicants for roles based in New York City, ensure that any background checks or questions regarding criminal history are delayed until after a conditional offer is made.
To apply these rules, audit your current application forms and interview scripts. If a form asks about convictions before an offer is made, remove that question. If an interview guide includes prompts about criminal history, move those prompts to a post-offer stage. This alignment ensures compliance with the specific timing requirements of Washington, California, and New York City. Remember that these laws do not apply to every state or every employer, so verify the location of the job posting and the employer's presence in these jurisdictions. If you use a standardized application across multiple locations, consider creating a version-specific form that omits the conviction question for roles in these three areas. This practice helps avoid unintentional violations and keeps the hiring process focused on relevant qualifications during the initial stages.
What you must send if a conviction may change the decision
California Code, GOV 12952, sets specific written notice requirements when a conviction history influences a hiring decision. You must send these notices at two distinct stages: when you make a preliminary decision to disqualify, and when you make a final decision to deny the application.
Preliminary decision notice
If you make a preliminary decision that an applicant’s conviction history disqualifies them from employment, California Code, GOV 12952, requires you to notify the applicant of this preliminary decision in writing. This step occurs before any final denial. The statute does not specify a deadline for this preliminary notice in the quoted text, but it mandates that the communication be written. This allows the applicant to understand that their conviction history is a factor in the potential disqualification before the process concludes.
Final decision notice
If you make a final decision to deny an application solely or in part because of the applicant’s conviction history, California Code, GOV 12952, requires you to notify the applicant in writing of all the following items. The excerpt requires written notice of the items that follow in GOV 12952, but it does not list those items.
Practical application
Send written notice of a preliminary disqualification decision, then written notice of a final denial.
Filled reference table of each publisher's rule
The following table names the publisher, the jurisdiction, the rule, and the source, and the EEOC row is the arrest-record standard. The Washington, California, and New York City rows are the timing rules.
| Publisher | Jurisdiction | Rule | Source |
|---|---|---|---|
| U.S. Equal Employment Opportunity Commission | Federal (Title VII guidance) | The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. | ( U.S. Equal Employment Opportunity Commission) |
| Washington State Legislature | Washington | An employer may not include any question on any application for employment, inquire either orally or in writing, receive information through a criminal history background check, or otherwise obtain information about an applicant's criminal record until after the employer initially determines that the applicant is otherwise qualified for the position and makes an offer of employment conditioned on obtaining the applicant's criminal record. | (Washington State Legislature) |
| California Legislative Information | California | An employer may not include a conviction-history question on an application before a conditional offer, and may not inquire into or consider conviction history until after that offer. | (leginfo.legislature.ca.gov.) |
| NYC Commission on Human Rights | New York City | The FCA makes it an unlawful discriminatory practice for most employers, labor organizations, and employment agencies to inquire about or consider the criminal history of job applicants prior to extending a conditional offer of employment. | (NYC Commission on Human Rights) |
Use this table to verify which jurisdiction applies to your specific job location. If the job is in Washington, California, or New York City, the corresponding row dictates when you may ask. The EEOC row provides the federal baseline regarding arrest records, which applies broadly but does not override the specific state or city timing rules listed in the other rows. Do not apply the Washington, California, or New York City timing rules to jobs located in other states unless those states have similar laws, as these rules are specific to the named jurisdictions.
A blank worksheet for one applicant's record review
Use this single-page form to document your review of one applicant’s criminal history against the specific duties of the role. The U.S. Equal Employment Opportunity Commission notes that while an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question ( U.S. Equal Employment Opportunity Commission). This distinction is the core of the review: you are evaluating the behavior, not the status of the record.
Complete the table below for each applicant you are considering. The goal is to create a clear, factual link between the specific conduct and the job requirements. Underlying arrest conduct may be considered when it makes the person unfit for the position. This process helps ensure that your hiring team is consistent and that the decision is based on job-related factors rather than bias or assumption.
| Applicant name | Position | Conduct Underlying Arrest | Relevance to Position | Date of Review |
|---|---|---|---|---|
| __ | __ | __ | __ | __ |
Illustrative example of one offer
An employer filling 1 role in 1 of 3 jurisdictions finds the applicant otherwise qualified, makes 1 conditional offer, sees 1 arrest and 0 convictions, refuses to deny the role for the arrest alone, and weighs only conduct that makes the person unfit for the position.
Today, remove any conviction question from the application for a role in Washington, California, or New York City before a conditional offer exists.
Conviction-question FAQ
May I ask about convictions on the application?
Washington and California prohibit asking about convictions on the application before a conditional offer. Under Washington law, an employer may not reject an applicant for failure to disclose a criminal record prior to receiving a conditional offer of employment ( Washington State Legislature). California law explicitly bans including any question on an employment application that seeks the disclosure of an applicant’s conviction history before the employer makes a conditional offer of employment ( leginfo.legislature.ca.gov.). If your job is located in either of these jurisdictions, the application form must not contain a conviction question until after that specific stage in the hiring process.
What is different about an arrest?
An arrest is not the same as a conviction. According to the U.S. Equal Employment Opportunity Commission, the fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity ( U.S. Equal Employment Opportunity Commission). This means that treating an arrest record as proof of guilt or using it as a standalone reason to reject an applicant lacks the necessary job-related justification under federal guidance. An arrest does not establish criminal conduct, and an arrest alone is not job related and consistent with business necessity.
When may a Washington employer ask?
A Washington employer may ask about criminal history only after making a conditional offer of employment. The state statute states that an employer may not reject an applicant for failure to disclose a criminal record prior to receiving a conditional offer of employment ( Washington State Legislature). The statute's standard is that the employer has initially determined the applicant is otherwise qualified and has made an offer conditioned on obtaining the criminal record. If you are hiring in Washington, move the conviction question to a post-offer stage, such as a background check authorization form signed after the offer is extended.
When may a California employer ask?
A California employer may ask about conviction history only after making a conditional offer of employment. The California Government Code prohibits including on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history ( leginfo.legislature.ca.gov.). This rule applies to the application form itself. While the law restricts the application, it allows the inquiry to occur after the conditional offer is made. Ensure your interview process and application forms in California do not solicit this information until the offer stage.
What written notice does California require if a conviction may end the application?
If a California employer makes a preliminary decision that an applicant’s conviction history disqualifies them from employment, the employer must notify the applicant of this preliminary decision in writing. The statute requires that if the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from employment, the employer shall notify the applicant of this preliminary decision in writing ( leginfo.legislature.ca.gov.). This written notice is a mandatory step before the employer can make a final decision based on the conviction history. You must draft a specific written notice that meets this requirement and ensure it is sent to the applicant before any final rejection decision is finalized.