Records of criminal convictions can last a lifetime, and thus can bring a lifetime of difficulty for employees with a criminal conviction history in finding employment, leaving them significantly disadvantaged before they even make it into the interview room. Lack of employment or difficulty assimilating after spending time in the criminal justice system can further increase the chances of re-offending, exacerbating the problem. These issues prompted a wave of state and local “ban-the-box” legislation – laws that delay employers from inquiring into or considering a job applicant’s criminal history until later in the hiring process.

The nearly 40 states and more than 150 cities and counties that have enacted ban-the-box laws, orders or ordinances have taken different approaches to the language of the legislation and how it functions. But the bottom line generally is the same: prohibiting any “box” on a job application that an applicant must check to indicate whether they have a criminal history, and deferring any inquiry into an applicant’s criminal history until at least an interview has been held or a conditional offer of employment has been extended. When criminal history can be considered, these laws also direct employers to evaluate the duration of time since the offense, the applicant’s rehabilitative history and the relation if any between the offense of conviction and the duties and responsibilities associated with the position sought, as well as to engage in a dialogue with the applicant to ensure that qualification and fit take priority over criminal history when assessing an applicant’s competitiveness for a position.

Given the newness of these ban-the-box laws, it’s no surprise that lawsuits have followed. In some cases, these lawsuits have clarified obligations and prohibitions as well as shaped enforcement of these laws. A recent case involving Pennsylvania’s ban-the-box law provides insight into a novel issue arising under that state’s law.

In December of 2023, Rodney Phath, a qualified truck driver with a commercial driver’s license, relevant experience and even federal clearance to access secure ports, was nearing the end of a job interview for a driving position when the prospective employer told him that they would check his criminal history. But before it did so, Mr. Phath voluntarily disclosed what it would find: that he had been convicted fifteen years earlier, and served a six-year prison sentence, for armed robbery. The employer immediately responded that it would not hire Mr. Phath. Pennsylvania’s ban-the-box law requires employers to consider an applicant’s criminal history only to the extent to which it relates to the applicant’s suitability for the position. Based on the outright and immediate rejection, Mr. Phath believed this employer had not done so, and he sued.

Pennsylvania’s ban-the-box statute applies when an employer is “in receipt of information which is part of an employment applicant’s criminal history record information file,” and it permits employers to seek information concerning an applicant’s criminal history from state agencies’ files. Because the employer here had not asked for or received information about Mr. Phath’s criminal history from a state agency – instead, it received the information directly from Mr. Phath – the company argued it was not “in receipt of” the information, and thus the law did not apply in this situation. The district court agreed and dismissed Mr. Phath’s lawsuit.

Mr. Phath appealed to the United States Court of Appeals for the Third Circuit (which covers Pennsylvania). On January 28, 2026, it issued its decision, reversing the district court, finding that the law indeed applied to his self-disclosure. In reaching its decision, the Court noted that the law’s focus and intent is on criminal history information itself, not the method by which it is obtained. It thus concluded that Mr. Phath’s self-disclosure easily met the requirement in the statute that the employer be “in receipt of” conviction information. The Court further explained that even though Mr. Phath’s criminal history information did not come directly from a state agency file, the statute did not require that the employer obtain the information from the file itself, only that the information be “part of” that file, which here, Mr. Phath’s conviction history plainly was. Put another way, the Court found that the statute addresses the type of information obtained, not its source. It therefore found that the statute applied to Mr. Phath, and sent the case back to the lower court to address whether the employer violated the statute by not considering Mr. Phath’s conviction in the context of the position sought, and whether the employer failed to comply with the law’s requirement that an employer provide notice to an applicant of rejection due to a prior criminal conviction.

The Third Circuit’s decision provides insight, at least to that court’s pragmatic approach, which focused on the legislative goals of preventing blanket rejections due to criminal conviction history. The decision also reminds employers to take heed of state and local laws that govern the application process. Had the employer taken the additional step of assessing Mr. Phath’s qualifications and whether his prior conviction related to the position he was seeking before concluding that his conviction rendered him unsuitable to drive its trucks, and then notified the applicant of that in writing, the outcome here would likely have been different.

Employers should be cautious in approaching the topic of criminal history in the interview and hiring process, and ensure full compliance with state and local laws, as well as internal policies that honor the intent of these laws to ensure that hiring decisions are holistic, well grounded, documented and legally compliant.

After Phath, employers can’t avoid ban-the-box responsibilities by arguing that they never formally looked at an employee’s criminal file — if an applicant says it, an employer is in receipt of it, and the law applies.

Caroline Carrier contributed to this article