Friday, February 14, 2020
Many states and localities have been adopting “ban-the-box,” prohibiting employers (including private employers) from asking applicants to disclose information concerning their criminal histories prior to an initial interview or a conditional offer of employment. Currently, all New England states except Maine and New Hampshire have a ban-the-box law that is applicable to private employers. Bills that would have applied ban-the-box to private employers in both Maine and New Hampshire died in last year’s legislative sessions, but there is a good chance that similar legislation will resurface.
Importantly, the ban-the-box law concerns criminal history information requested directly from applicants (and employees under certain state law). Employers may request certain criminal history information from other sources (e.g., federal or state department of criminal justice systems) and/or through a third party vendor (e.g., consumer reporting agency), but there may be separate requirements for criminal background checks under applicable federal and/or state law.
Employers would be wise to review the relevant laws in all jurisdictions in which they do business and monitor further legislative activities on this topic. In light of that information, employers may consider whether application documents, hiring practices, and criminal history check policies need to be updated.
Asking Applicants to Disclose Criminal History Information
The “ban-the-box” laws in Connecticut, Massachusetts, Rhode Island and Vermont impose restrictions on the timing of criminal history inquiries: They prohibit employers from asking an applicant to disclose his or her criminal history information until a specified point in the hiring cycle (e.g., the interview stage or after a conditional offer of employment). There are certain exemptions from such prohibition (e.g., required by law not to hire an individual convicted with certain offenses). Significantly, Connecticut, Massachusetts and Vermont impose additional restrictions on the types of questions employers may ask even after they have passed the specified point in the hiring cycle. Further, Connecticut and Massachusetts require certain disclaimers be included in certain hiring documents. (See Conn. Gen. Stat. § 31-51i; M.G.L. ch. 151B, § 4 (9 1/2), (9); RI RSA § 28-5-7 (7); & 21 V.S.A. § 495j)
Here is a summary of the law regarding pre-employment inquiries into criminal history information in all six New England states:
Maine. Certain state government employees are protected from pre-employment criminal history inquires, but there is currently no ban-the-box law applicable to private employers. A bill proposing prohibiting all Maine employers (including private employers) from asking an applicant to disclose the applicant’s criminal history until after the applicant received a conditional offer of employment was vetoed by Governor LePage in 2018.
Massachusetts. Employers are generally prohibited from asking an applicant to furnish criminal offender record information prior to the interview. In addition, an employer generally may not ask an applicant (at any point in the application process, even after receiving a conditional offer) or a current employee, whether in writing or orally, about certain criminal information (e.g., any misdemeanor convictions that occurred more than three years ago, criminal conviction records that have been sealed or expunged, an arrest or any offenses that did not result in conviction). The law prohibits employers from taking adverse action against a prospective or current employee based on criminal history information obtained in contravention of ban-the-box. Any form used by an employer that seeks information concerning an applicant’s criminal history must include the specific statement regarding expunged and sealed records as required by the law.
New Hampshire. New Hampshire has no restrictions. A bill introduced last year that would have prohibited employers from asking about an applicant’s criminal history on a job application was vetoed by Governor Sununu.
Rhode Island. Employers are generally prohibited from inquiring on any application for employment or otherwise, orally or in writing, whether the applicant has ever been arrested, charged with or convicted of any crime. The law permits employers to ask an applicant for information about his or her criminal convictions at the first interview or thereafter.
Connecticut. The Connecticut law generally prohibits employers from asking an applicant to disclose his or her criminal background information until after the interview or a conditional offer of employment. Significantly, employers are prohibited from asking an applicant at any time during the hiring process, or a current employee, about erased criminal records. Thus, the law effectively prohibits employers from relying on erased criminal records when making an adverse employment decision. Further, any form used by an employer that contains any question concerning the criminal history of the applicant must contain specific disclosure language regarding erased records.
Vermont. Employers are generally prohibited from asking an applicant to provide criminal history record information on the initial employment application form. Employers are allowed to question applicants about their prior criminal records during a job interview or once the applicant has been deemed otherwise qualified for the position. However, employers may not ask applicants to answer questions about arrests or convictions that have been expunged. Further, the law requires that a person whose criminal history record is expunged or sealed by court order be treated as if he or she has never been arrested, convicted, or sentenced for the offense. Thus, employers cannot rely on expunged or sealed records when considering an adverse employment decision.
Obtaining Criminal History Information Elsewhere
Employers considering criminal background checks on applicants or employees should be aware that they may be subject to certain requirements under applicable state law, separate from the compliance with ban-the-box. For example, Massachusetts generally requires that an employer obtain a written consent signed by an applicant/employee prior to conducting a criminal history background check, and that employers conducting five or more criminal history background checks a year have a written criminal background check policy in place, which must meet the minimum requirements under the law.
Employers using a third-party vendor (e.g., consumer reporting agency) are generally subject to additional requirements under the federal Fair Credit Reporting Act (FCRA) as well as analogous state law. For example, under the federal FCRA, employers must make certain disclosures to applicants/employees and obtain signed written authorizations from them before requesting background checks by a third party vendor. Maine and Connecticut generally follow the federal FCRA, but Massachusetts, New Hampshire, Rhode Island, and Vermont require state-specific disclosures in addition to the federal requirements.
Reliance on Criminal History Information
Whether obtained directly from an applicant and/or obtained through a background check on the applicant, criminal history information must be considered in a non-discriminatory fashion. Under Equal Employment Opportunity Commission guidance, employers should make an individual assessment of a criminal offense in light of job-relatedness and business necessity, and consider all relevant factors, such as the nature and gravity of the offense or conduct; the time that has passed since the offense; and the nature of the job held or sought. Moreover, certain states (e.g., Massachusetts) require additional factors to be considered in reviewing criminal history information (e.g., the age at the time of the offense, the number of offenses, any pending charges, etc.).
Navigating through ban-the-box as well as the federal and state laws concerning criminal background checks can be complex. As initial steps, we recommend the following:
Update, if necessary, initial hiring documents (e.g., job applications) to ensure that such documents do not include a question about an applicant’s criminal history.
Consider utilizing a criminal history questionnaire (including permissible criminal history questions) that should be used after the initial interview or after a conditional offer of employment.
Train personnel involved in the hiring process on restrictions imposed by these ban-the-box laws, including permissible vs. impermissible questions.
For multistate employers, determine whether a particular locality or state they operate in has a similar ban-the-box restriction.
Take a fresh look at your current criminal background check policies and practices to ensure compliance with applicable law.
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