Ban the Box Laws in Arkansas: Criminal History in Hiring

The federal ban the box rule applies to all employers with federal contracts exceeding $150,000. Under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., federal contractors must delay inquiries into criminal history until after they make a conditional offer of employment. This means covered employers cannot ask about arrests, charges, or convictions on the initial application or during the initial interview phase.

The rule applies to direct federal contractors and subcontractors. The EEOC enforces the FCRA ban the box provisions and focuses on ensuring compliance with the delayed inquiry timeline. Remedies for violations include back pay, front pay, compensatory damages, and punitive damages in cases of intentional discrimination.

The federal rule does not prevent employers from conducting background checks; it only requires that criminal history questions be postponed until after a conditional offer is made. This allows applicants with criminal records an equal opportunity to be considered on their merits before their record is reviewed.

Arkansas does not have a statewide ban the box law. This means private employers in Arkansas are not restricted by state law from asking about criminal history on job applications, during interviews, or as part of the hiring process. Arkansas Code § 5-4-603 allows individuals to petition for restoration of certain rights after conviction, but this does not prevent employers from asking or considering criminal history during hiring.

However, Arkansas employers must still comply with federal law. Any employer with a federal contract exceeding $150,000 must follow the federal FCRA ban the box rule, which delays criminal history inquiries until after a conditional job offer is made. This applies to employers in Arkansas regardless of state law.

Additionally, Arkansas cities and municipalities may impose their own ban the box requirements. Little Rock Municipal Code § 25-59-1 restricts criminal history inquiries for city employees and contractors working on city contracts. Similar ordinances may exist in other Arkansas municipalities, so employers should verify local requirements in their specific jurisdiction.

Under Arkansas law, employers may also be subject to the general federal prohibition against discrimination based on criminal history when the conviction or arrest is not directly related to the job. Courts may find that blanket policies excluding all individuals with criminal records constitute discrimination under Title VII when applied disparately.

Arkansas employers are generally exempt from ban the box restrictions because the state has no statewide law. Private employers not working on federal contracts can ask about criminal history at any stage of the hiring process under Arkansas law. Employers in positions of trust, such as schools, childcare facilities, and healthcare providers, may have broader authority to inquire about criminal history due to safety and licensing requirements, though they must still comply with federal nondiscrimination law.

The federal FCRA ban the box rule includes exceptions for certain positions. Employers may inquire about criminal history at any stage for positions involving access to sensitive information, national security clearances, or certain law enforcement roles. Additionally, the rule does not prevent employers from conducting background checks; it only restricts the timing of criminal history inquiries.

Arkan­sas employers may also consider the nature and age of a conviction. Arkansas Code § 5-4-603 allows restoration of rights for certain misdemeanors and nonviolent felonies, and employers may be required to consider rehabilitation and time elapsed when making decisions. Blanket exclusions of individuals with any criminal record may violate federal nondiscrimination law, particularly when applied in a way that has a disparate impact on protected classes.

Employees in Little Rock and other cities with local ordinances have additional protections. However, employers working solely in unincorporated Arkansas outside covered municipalities have no state or local restrictions on asking about criminal history, unless they are federal contractors.

Step 1: Document the hiring process and communications. If you are a federal contractor and an employer asked about criminal history before making a conditional job offer, save all job postings, application forms, interview notes, emails, and the timeline of when questions were asked. Keep records of when you received the conditional offer (if one was made) and what happened after. Document any rejections or employment decisions that may have been based on criminal history inquired about prematurely.

Step 2: Check for internal company grievance procedures. Review your employee handbook or company policies for a complaint or grievance process. If the violation occurred during hiring, you may not be an employee yet, but if you were hired, file an internal complaint immediately. If you were not hired, contact the hiring manager or HR department in writing requesting clarification on why you were rejected and whether your criminal record was a factor. Keep copies of all communications.

Step 3: File a charge with the appropriate agency. If your employer is a federal contractor and violated the federal ban the box rule, file a charge with the Equal Employment Opportunity Commission (EEOC). Visit www.eeoc.gov or call 1-800-669-4000 to locate the nearest EEOC field office in Arkansas (the Memphis District covers Arkansas). You must file within 180 days of the violation. Provide detailed information about the employer, the job you applied for, when criminal history was asked about, and how it affected your hiring decision.

If you applied for a City of Little Rock position or Little Rock city contract job, file a complaint with the City of Little Rock Equal Opportunity Office. The deadline for local ordinance complaints varies by city; contact the city directly for filing requirements. Include the job title, application date, when questions about criminal history were asked, and any written communications showing the violation.

Step 4: Understand the investigation process. The EEOC will review your charge, conduct interviews with the employer and witnesses, and request documents about the hiring process. This process typically takes 2-6 months for a determination. The investigator will examine whether the employer asked about criminal history before making a conditional offer and whether the employer is a federal contractor covered by the rule. If the EEOC finds reasonable cause, they will attempt conciliation. If conciliation fails, the EEOC may file a lawsuit or issue a right-to-sue letter allowing you to sue in federal court.

Step 5: Consult an employment attorney if necessary. If you were not hired and believe the ban the box violation contributed to the rejection, contact an employment discrimination attorney. Many offer free consultations. An attorney can evaluate whether you have a strong case, negotiate with the employer, or file a lawsuit. For federal contractor violations, you may also file a complaint with the federal contracting agency (such as the Department of Labor or the agency that awarded the contract). An attorney can help identify the relevant federal agency and file administrative complaints to preserve your rights.