Ban the Box Laws in North Carolina: Criminal History in Hiring

The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681b(b)(1), does not impose a blanket prohibition on asking about criminal history during hiring. However, it requires that employers using criminal background reports must comply with procedural protections: obtaining written consent before requesting a report, providing a copy of the report and adverse action notice before denial, and allowing the applicant to dispute accuracy. Most importantly, under FCRA guidance from the Federal Trade Commission and EEOC, employers must not use criminal records in a manner that has a disparate impact based on race, as criminal conviction rates are significantly higher among Black applicants.

Executive Order 11246, enforced by the Office of Federal Contract Compliance Programs (OFCCP), requires federal contractors and subcontractors (those with $50,000+ in federal contracts) to delay inquiries about criminal history until after a conditional offer of employment has been made. This delay applies only to federal contractors; non-federal employers are not bound by this requirement unless they are also subject to state or local law.

The EEOC has issued guidance that employers should conduct individualized assessments when using criminal records in hiring decisions, evaluating the nature and gravity of the offense, the time elapsed since the conviction, and the job's requirements. Blanket exclusions based on any criminal conviction may violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, if they have a disparate racial impact. No federal law explicitly bans the box at the national level for private employers; instead, compliance turns on how the records are used and whether the inquiries and decisions comply with equal employment opportunity laws.

North Carolina has no statewide ban the box law. North Carolina General Statute § 21-25.1 addresses the use of criminal records only in licensing decisions, not in private employment hiring. This means that as a baseline, North Carolina private employers may ask about criminal history at any stage of the hiring process—on job applications, during interviews, or at any other point—without state restriction.

However, North Carolina municipalities have enacted local ban the box ordinances that apply to employers within their jurisdictions. Charlotte (Charlotte City Code § 25-1), Greensboro (Greensboro Code § 25-1), Durham (Durham Code § 18-30), and Chapel Hill (Chapel Hill Code § 15-20) all require employers (or, in some cases, only city contractors and applicants for city employment) to delay inquiries about criminal history until after a conditional job offer has been made. These local ordinances vary slightly in scope: some apply only to employers doing business with the city or to city jobs, while others apply more broadly. Employers in these cities should verify the exact scope of the local ordinance.

The state rule is therefore weaker than federal law in that North Carolina provides no statewide protection, and any protection available derives from local ordinances. North Carolina employers outside the cities with ban the box ordinances face no state-level restriction on timing of criminal history inquiries. However, all North Carolina employers remain subject to federal law (FCRA, Executive Order 11246 if they are federal contractors, Title VII equal employment opportunity standards, and state laws addressing licensing decisions in regulated professions). North Carolina employers using criminal background reports through third parties must comply with FCRA procedures including written consent and adverse action notices.

North Carolina's lack of a statewide ban the box law creates a broad exception: employers outside Charlotte, Greensboro, Durham, and Chapel Hill may ask about criminal history without timing restrictions. Private employers in North Carolina are not subject to Executive Order 11246 unless they are federal contractors receiving $50,000 or more in federal contracts; small employers and non-federal businesses have no federal delay obligation.

The Fair Credit Reporting Act applies only to criminal background reports obtained through a third-party consumer reporting agency (CRA). If an employer conducts its own background investigation or asks the applicant directly about criminal history without using a CRA, FCRA protections do not apply, though state and local law may. Some convictions may be sealed or expunged under North Carolina General Statute § 15A-151, and employers may not legally discriminate based on sealed or expunged records; however, this exception applies only to records that have been formally sealed or expunged through the court system.

Certain professions and positions may have additional restrictions or exemptions. North Carolina law addresses criminal record use in occupational licensing (N.C.G.S. § 21-25.1), and regulated industries (such as those involving contact with children, vulnerable adults, or financial institutions) may have specific statutory or regulatory carve-outs. At-will employment doctrine applies in North Carolina; employers are generally free to set their own hiring criteria unless those criteria violate equal employment opportunity law or other specific statutory protections. Federal contractors and applicants in local ban the box jurisdictions have limited exceptions, but these ordinances typically allow post-offer inquiries and background checks.

Step 1 — Document Everything: Keep detailed records of all communications about the hiring process, including the job posting, application materials, interview notes, and any communications about criminal history inquiries. If you were asked about criminal history at what you believe was an improperly timed stage (in a local ban the box jurisdiction), save screenshots of the application or emails, interview notes documenting when the question was asked, and any written responses you provided. Note the date, job title, employer name, and names of interviewers. If a background report was obtained, document when the consent form was signed, when you received notice of the employer's intent to use the report, and the content of any adverse action notice.

Step 2 — Internal Complaint Process: If the employer is a local government or federal contractor subject to ban the box requirements, send a written complaint to the hiring manager or human resources department, citing the applicable local ordinance (e.g., Charlotte Code § 25-1) or Executive Order 11246, and describing the improper timing of the inquiry. Request a written response. If a background report was obtained, verify that you were provided written consent forms, a copy of the report, and an adverse action notice if the report was used in a hiring decision. Even if no formal internal complaint process exists, a written email to HR documenting the violation creates a paper trail and may prompt a corrective response.

Step 3 — File with the Appropriate Agency: For violations of local ban the box ordinances (Charlotte, Greensboro, Durham, Chapel Hill), file a complaint with the city's Civil Rights or Human Resources department. Contact information: Charlotte Civil Rights Department, (704) 336-2205 or https://www.charlottenc.gov/human-rights; Greensboro Human Resources Department, (336) 373-3000 or https://www.greensboro-nc.gov/; Durham Civil Rights Department, (919) 560-4197 or https://www.durhamnc.gov/. For federal contractors, file a complaint with the Office of Federal Contract Compliance Programs (OFCCP) at https://www.dol.gov/agencies/ofccp or by calling 1-866-4-USDOL (1-866-487-3652). For FCRA violations (improper use of criminal background reports obtained from third-party agencies), file a complaint with the Federal Trade Commission at https://reportfraud.ftc.gov/ or call 1-877-438-4338. If the violation involves discriminatory use of criminal history (disparate impact based on race), file a charge with the Equal Employment Opportunity Commission (EEOC) at https://www.eeoc.gov/filing-charge-discrimination or call 1-800-669-4000. Provide your name, contact information, employer name and address, job title applied for, date of hiring decision or inquiry, description of the unlawful inquiry or action, and any evidence (emails, photographs of application, etc.). There is no strict filing deadline for local ordinances; federal agencies typically accept complaints within reasonable timeframes after the violation.

Step 4 — Investigation Process: Local city civil rights departments will typically initiate an informal investigation by contacting the employer and reviewing hiring records. The investigation may take 30–90 days. The OFCCP investigates federal contractor complaints through document requests and on-site audits; OFCCP investigations can extend several months. The FTC investigates FCRA violations but does not typically pursue individual consumer complaints directly; instead, you may have a private right of action under FCRA, 15 U.S.C. § 1681p, allowing you to sue the employer or CRA for damages. The EEOC investigates discrimination charges and will issue a right-to-sue letter if it determines insufficient evidence; the process typically takes 6–12 months.

Step 5 — When to Consult an Attorney: Consult an employment law attorney if: (1) the employer is a federal contractor and you believe they violated Executive Order 11246; (2) a background report was obtained and you believe the employer failed to comply with FCRA procedures or used the report in a discriminatory manner; (3) the violation occurred in a local ban the box jurisdiction and the employer retaliated against you (e.g., withdrew the job offer or failed to hire you after you filed a complaint); or (4) you believe the criminal history inquiry or denial was based on discriminatory intent or had a disparate racial impact. An employment law attorney can evaluate whether you have a claim under FCRA (which allows damages of $100–$1,000 per violation plus attorney fees), state contract law, or federal discrimination statutes. North Carolina attorneys are listed by the North Carolina State Bar at https://www.ncbar.org/; search for employment law specialists. Many employment attorneys offer free initial consultations and work on contingency in discrimination cases.