What is the Right Time to Ask About a Job Candidate’s Criminal History?
Jul 23, 2025New Hampshire’s ban-the-box law could be repealed later this year
In 2020, New Hampshire joined at least 37 states, the District of Columbia, and over 150 municipalities throughout the nation by enacting its own “ban-the-box” law. New Hampshire’s ban-the-box law — like all others —specifies when, during the hiring process, an employer is allowed to ask candidates about prior criminal history. The term “ban-the-box” refers to removing the checkbox on job applications that asks if the applicant has a criminal record. The ban-the- box laws of the various jurisdictions differ in certain respects: some only apply to public sector employers, others to all employers; some require an employer make a conditional employment offer before requesting criminal history information, others allow employers to ask about an applicant’s criminal history during an interview process but not on an application form.
But the common intended goal of all ban-the-box laws is to promote fairer opportunities for employment by ensuring that individuals with a criminal record are evaluated on their overall qualifications first before being asked — at some other step in the hiring process— about criminal history. The idea is that a criminal record should not be an automatic disqualifier for many jobs.
The status of New Hampshire’s ban-the-box law has recently come into question. In early May, the NH State Senate Finance Committee added the repeal of New Hampshire’s ban-the-box law to their budget (HB 2) proposal. We understand the New Hampshire Department of Labor specifically asked for this provision to be added to the budget bill, in response to a well-publicized issue that agency experienced with an administrative judge earlier this year. During the Committee of Conference process, where legislative leaders attempt to find compromise, the House agreed to the Senate’s addition and included the repeal of the ban-the-box law in their final HB 2 deal. It remains to be seen if the deal struck by legislative leaders can garner enough support to pass and then be signed into law by the Governor. We’ll let you know if this request survives the next steps of the budget process.
Current New Hampshire state law
New Hampshire’s version of the ban-the-box law, which was enacted in the 2020 legislative session through House Bill 253 (HB-253), and which remains in effect for now as NH RSA chapter 275-H, prohibits public sector employers from inquiring about a job applicant’s criminal history prior to an interview. The law also provides for the imposition of civil penalties by the NH Department of Labor in accordance with RSA 273:11-a in instances where the employer violates the provisions of RSA 275-H:2.
Federal policy related to ban-the-box
Enacted in 2019, the Fair Chance to Compete for Jobs Act (FCA) prohibits federal agencies and contractors from requesting criminal history information from applicants until after a conditional job offer is made. By setting this basic standard, the ban-the-box movement spread rapidly across the nation. This federal mandate aims to establish a national standard for fair hiring practices.
The Equal Employment Opportunity Commission (EEOC) — the government arm enforcing regulations under Title VII of the Civil Rights Act of 1964 — issued enforcement guidance about how to consider arrest and conviction records in enforcement decisions. The EEOC recommends assessing criminal records on a case-by-case basis, considering factors such as the nature of the offense, the time elapsed since the conviction, and its relevance to the job role.
Remember…
It’s important to remember that all ban-the-box laws concern the requests made by employers — directly to an applicant — about their criminal history. Employers are free to request and receive certain criminal history information from other sources, such as federal and state criminal justice agencies or through third-party vendors.
In New Hampshire, criminal history record requests are handled through the NH Division of State Police. At the federal level, requests of this nature are processed through the United States Department of Justice.
If you have any questions about compliance with ban-the-box regulations in any state or municipality — or more general concerns about the legal process of requesting criminal background information in your hiring and recruitment initiatives — don’t hesitate to contact Orr & Reno for assistance.
