Ban the Box Laws in Alaska: Criminal History in Hiring

Federal law does not establish a uniform ban-the-box requirement for all employers nationwide. However, the Equal Employment Opportunity Commission (EEOC) enforces the Title VII Civil Rights Act, 42 U.S.C. § 2000e, which prohibits discrimination based on protected characteristics. Under EEOC guidance, criminal history inquiries can constitute unlawful discrimination if applied in a disparate manner based on race, color, or national origin, because incarceration rates differ significantly across racial groups.

Federal contractors with federal contracts over $150,000 must comply with Executive Order 11246 (as amended), which requires delaying criminal history inquiries until after a conditional job offer is made. The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., requires employers to obtain authorization before conducting background checks and to provide applicants notice if adverse employment action is taken based on criminal history. However, the FCRA does not ban criminal history inquiries outright; it only regulates the timing and disclosure process for background reports. Enforcement is handled by the EEOC for Title VII claims and the Federal Trade Commission (FTC) for FCRA violations.

Alaska Statute 34.20.350 provides stronger protections than federal law by establishing a statewide ban-the-box requirement for all private employers in Alaska, regardless of size or federal contractor status. Under this statute, employers cannot inquire about criminal history on job application forms or during initial interviews. The statute applies to all employers with one or more employees in Alaska, making it broader in scope than federal contractor rules that cover only employers with federal contracts.

Alaska's law prohibits employers from asking applicants to disclose criminal history until after a conditional job offer has been made. A conditional offer means the employer has determined the applicant meets the basic qualifications for the position and has extended an offer contingent upon background investigation results. Once a conditional offer is extended, employers may then inquire about criminal records and may conduct criminal background checks through authorized third parties.

Under Alaska Statute 12.55.127, sealed criminal records, pardoned convictions, and juvenile adjudications are treated as though they do not exist and cannot be considered by employers at any stage of the hiring process. Applicants have no obligation to disclose sealed or pardoned records, and employers cannot base hiring decisions on such records. Additionally, Alaska law provides that if an employer determines criminal history is relevant to the position, the applicant must be given notice of this determination and an opportunity to respond and explain the relevance of the conviction to the job.

Alaska's law differs from federal law in that it provides an absolute prohibition on criminal history inquiries at the application stage, whereas federal law (through EEOC guidance) only requires employers to avoid discriminatory application of such inquiries. Alaska's statute also explicitly protects sealed and pardoned records, which federal law does not uniformly address. Remedies under Alaska law include claims of unlawful employment practice with the Alaska Human Rights Commission, potential damages for wage loss, and civil rights claims under Alaska common law.

Alaska's ban-the-box law contains limited exceptions that employers should understand. First, the statute does not apply to inquiries required by federal law, such as those for federal contractors or employers subject to specific federal background check mandates (e.g., positions involving nuclear facilities or certain defense work).

Second, employers in certain professions or industries may have statutory exceptions. For example, employers hiring for positions that require fingerprinting or criminal clearance under federal or state law are exempt from the ban-the-box requirement for those positions. This includes certain occupations regulated by the state that have specific background check mandates as a condition of licensure.

Third, after a conditional offer is made, employers may inquire about criminal history and may conduct background checks. However, employers must still follow the FCRA's requirements for authorization and notice. Employers cannot summarily reject applicants based on criminal history; they must consider the nature, severity, and recency of the conviction, the job description, and whether the conviction is actually relevant to the position.

Fourth, sealed, pardoned, and juvenile records remain outside the scope of permissible inquiry at any stage. Even after a conditional offer, employers cannot ask about sealed records, and applicants are permitted to answer "no" if asked about sealed convictions.

Fifth, the statute does not prevent employers from conducting background checks through third-party vendors, provided the vendor complies with FCRA requirements and employer authorization is obtained. However, the timing of when such inquiries can be initiated is controlled by the conditional offer requirement.

Step 1: Document the violation. Keep copies of the job application form if it contained criminal history questions, screenshots of online applications that asked about criminal records, notes from interviews documenting when criminal history was asked (include date, time, interviewer name, and exact questions), any rejection letters or email correspondence referencing criminal history, and communications with HR or hiring managers about the inquiry.

Step 2: File an internal complaint if the employer has an HR department or complaint process. Submit a formal written complaint to the HR department documenting the date, time, and nature of the criminal history inquiry, naming the person who asked the question, and requesting investigation. Keep a copy for your records. Wait up to 30 days for a response, as this demonstrates you attempted internal resolution, though it is not required before filing externally.

Step 3: File with the Alaska Human Rights Commission (AHRC) within 1 year of the violation date. Visit the AHRC website at https://humanrights.alaska.gov/ or contact the commission at (907) 274-4692 (Anchorage) or toll-free at 1-800-478-4692. Prepare a detailed written complaint including your name, contact information, employer name and address, date(s) of the violation, specific facts describing the criminal history inquiry, names of witnesses if applicable, and what you are seeking in relief (e.g., employment, damages, policy change). Submit the complaint either online through the AHRC portal, by mail to Alaska Human Rights Commission, 550 West 7th Avenue, Suite 701, Anchorage, AK 99501, or by fax to (907) 276-2465.

Step 4: Participate in the AHRC investigation process. The commission will accept your complaint if it is timely filed and states facts that, if proven, would constitute a violation of Alaska Statute 34.20.350. The AHRC will then investigate by reviewing documents, interviewing you and the employer, and requesting evidence from both parties. Investigation typically takes 60–90 days, though complex cases may take longer. You will be asked to provide additional documentation, participate in interviews, and respond to employer statements. The AHRC will issue a finding of whether probable cause exists that a violation occurred.

Step 5: Consult with an employment attorney if the AHRC issues a probable cause finding or if you wish to pursue damages or injunctive relief. An employment law attorney with experience in discrimination or Alaska Statute 34.20.350 violations can advise you on settlement options, represent you in conciliation meetings with the employer, or pursue a civil action in superior court if conciliation fails. Attorneys specializing in civil rights or employment law are best suited for this claim. Many offer free initial consultations.