Ban the Box Laws in Alabama: Criminal History in Hiring

The federal ban the box law is not a single statute but rather applies to federal contractors and subcontractors through amendments to Executive Order 11935 and enforced via OFCCP regulations (41 CFR § 60-300.2). Under this rule, federal contractors—meaning companies with federal contracts exceeding $25,000—must delay inquiries into an applicant's criminal history until after the employer has determined the applicant is otherwise qualified for the position and typically after a conditional job offer is extended.

The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681b(b)(1), governs how background check companies can report criminal records and applies to all employers. The FCRA allows reporting of convictions without a time limit and arrests for seven years, but does not prohibit employers from asking applicants directly about criminal history.

The Equal Employment Opportunity Commission (EEOC) also enforces guidance under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, which prohibits blanket exclusions based on criminal history if such policies have a disparate impact on protected classes (particularly African American and Hispanic applicants). However, this does not ban criminal history questions; rather, it requires individualized consideration of the nature and seriousness of the crime, the time elapsed, and job relevance.

Alabama has no statewide ban the box law, and Alabama Code contains no statute restricting the timing or content of criminal history inquiries by private employers. This means Alabama employers are freer than employers in ban the box states to ask about criminal history at any point in the hiring process, including on initial applications.

Alabama's criminal record sealing and expungement law is codified in Alabama Code § 13A-5-3 and § 13A-5-7. Under Alabama law, certain criminal records can be sealed or expunged, but an individual is generally not required to disclose sealed records on job applications unless the employer is a law enforcement agency, courts, or specific regulated industries.

However, local ordinances in some Alabama cities impose ban the box requirements. The City of Birmingham Ordinance Code § 25-2-606 prohibits the city and city contractors from inquiring about criminal history before determining that a candidate is otherwise qualified and extending a conditional offer. This applies only to city employment and city-funded contractors, not private employers operating in Birmingham absent a contract with the city.

Alabama employers are still subject to federal law if they are federal contractors (covered by 41 CFR § 60-300.2) or if they use background check companies regulated by the FCRA (15 U.S.C. § 1681b). Additionally, Alabama recognizes a common law duty of fair dealing and implied covenant of good faith; employers cannot ask criminal history questions as a pretext for discrimination based on protected characteristics like race, color, or national origin.

Unlike states with strong ban the box laws, Alabama employers face minimal state-level barriers to asking about criminal history. An Alabama applicant with a criminal record has fewer state-law protections than applicants in states like California or New York, where extensive ban the box laws and record-sealing options apply.

Alabama employers face no state law exceptions to asking criminal history questions, because Alabama has no statewide ban the box statute. This is a key distinction: the absence of a ban the box law means there is no protected class or category of applicants exempt from criminal history inquiries.

However, several important exceptions and defenses apply in practice. First, federal contractors cannot apply this freedom uniformly. If an employer is a federal contractor with a contract exceeding $25,000, they must comply with 41 CFR § 60-300.2 and cannot ask about criminal history before a conditional job offer stage. Failure to comply can result in loss of federal contract eligibility.

Second, employers cannot use criminal history inquiries as a pretext for race or national origin discrimination. The EEOC has taken the position that blanket policies excluding all individuals with criminal records can constitute disparate impact discrimination under Title VII of the Civil Rights Act of 1964. Employers must conduct individualized assessments of the relevance, nature, and severity of the crime and years since conviction.

Third, if an employer uses a background check company, that company is subject to FCRA restrictions (15 U.S.C. § 1681b and 1681e). The background check company cannot report arrests not resulting in conviction after seven years, and must follow FCRA notice and dispute procedures. However, the employer's direct question to an applicant is not FCRA-regulated.

Fourth, local ordinances apply. The City of Birmingham and potentially other municipalities have enacted local ban the box rules. Employers entering into contracts with these municipalities must comply with local ordinances even if state law does not restrict them.

Fifth, Alabama recognizes implied covenants of good faith and fair dealing; however, this is a weak protection and does not create an affirmative right to work free from criminal history inquiries.

Finally, certain professions and industries may be exempt or subject to different rules by federal law (e.g., positions requiring security clearances, positions in banking or healthcare may be subject to federal licensing or industry-specific rules that supersede Alabama law).

Step 1: Document the Hiring Process and Questions. If you believe an employer has discriminated against you based on criminal history inquiries, document the date you applied, the position, the method of application (online form, paper, interview), the exact questions asked about criminal history, and any written materials provided during the hiring process. Take screenshots of online applications and keep copies of paper applications. Note the date of any interviews and record (with consent) what questions were asked. Document also your protected characteristics (race, color, national origin, age, disability status) if you believe the criminal history inquiry was a pretext for discrimination based on these traits.

Step 2: Determine If You Are Covered by Federal or Local Law. Review whether the employer is a federal contractor with a federal contract exceeding $25,000 (subject to 41 CFR § 60-300.2) or is a contractor with the City of Birmingham or another municipality with a ban the box ordinance. If so, the employer may have violated federal or local law by asking about criminal history too early. If the employer is a private employer with no federal or municipal contract, Alabama state law does not restrict criminal history inquiries, but you may still have a claim under federal law if the inquiry reflects racial or national origin discrimination.

Step 3: File a Complaint With the Appropriate Agency. If you believe discrimination occurred based on race, color, national origin, or another Title VII protected characteristic, file a charge with the Equal Employment Opportunity Commission (EEOC). The EEOC office serving Alabama is located in Birmingham. You can file online at www.eeoc.gov, by phone at 1-800-669-4000, or in person at 1900 3rd Avenue North, Suite 100, Birmingham, AL 35203. You must file within 300 days of the alleged discrimination (because Alabama has no state EEOC deferral agency). Include in your complaint: your name and contact information, the employer's name and address, the date of the alleged discrimination, a description of what happened (including the criminal history question asked), and how you were affected (e.g., you were not hired). If the employer is a federal contractor and violated the federal ban the box rule, you can also file a complaint with the Office of Federal Contract Compliance Programs (OFCCP) at www.dol.gov/ofccp or contact the OFCCP regional office for Alabama (part of the Atlanta region: 61 Forsyth Street SW, Suite 100, Atlanta, GA 30303).

Step 4: Understand the Investigation and Timeline. Once you file with the EEOC, the agency will conduct an investigation, typically within 180-365 days, depending on caseload. The EEOC will request documents from the employer, interview witnesses, and determine whether there is reasonable cause to believe discrimination occurred. If reasonable cause is found, the EEOC will attempt conciliation (settlement negotiation). If conciliation fails, the EEOC may file suit on your behalf or issue you a right-to-sue letter, which allows you to file a private lawsuit within 90 days. For federal contractor violations, the OFCCP investigation typically takes 6-12 months and may result in a corrective action plan or loss of federal contract eligibility for the employer, though you may not receive direct compensation. If you file with the City of Birmingham or another municipality regarding a local ban the box violation, contact the city's human resources or civil rights office for the local complaint process and timeline.

Step 5: Consult an Employment Attorney. If the EEOC issues you a right-to-sue letter or if you believe you have a claim for damages (lost wages, emotional distress, punitive damages), consult an employment law attorney licensed in Alabama. An attorney can evaluate whether you have a viable discrimination claim under Title VII, advise on settlement negotiations, file a lawsuit in federal district court (U.S. District Court for the Northern, Middle, or Southern District of Alabama, depending on geography), and represent you in litigation. Initial consultations are often free. Look for attorneys experienced in Title VII discrimination or federal contractor compliance. If you have a federal contractor claim, an attorney experienced in OFCCP matters is valuable. You do not need an attorney to file an EEOC charge, but having one can strengthen your case and increase the likelihood of a favorable outcome.