Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

If you're wondering if the applicant you're planning on hiring is a closet Justin Bieber fan or a Russian spy, odds are that a background check won't uncover that information. 

What is may, uncover, however is whether that applicant has been arrested for say, vomiting on a police officer's kid at a baseball game .

But what are the rules in Connecticut for background checks?

Continuing a weekly summer series of posts on the basics of various laws, background checks in Connecticut just received some publicity due to legislative action. But here are the basics:

1) For public employers, effective October 1, 2010, new rules go into effect on background checks. Unless certain exceptions apply, prior convictions cannot be inquired into until the applicant is deemed "qualified" for the position. This will typically mean that a job offer has been made. You can see the language of the new law (which updates Conn. Gen. Stat. Sec. 46a-80) here.  This is similar, in many ways, to the private workplace as I will discuss below.

But who is a "public employer"? That is governed by Conn. Gen. Stat. 5-270 which defines it as follows: 

"Employer" means the state of Connecticut, its executive and judicial branches, including, without limitation, any board, department, commission, institution, or agency of such branches or any appropriate unit thereof and any board of trustees of a state-owned or supported college or university and branches thereof, public and quasi-public state corporation, or authority established by state law, or any person or persons designated by the employer to act in its interest in dealing with employees, but shall not include the State Board of Labor Relations or the State Board of Mediation and Arbitration.

2) If you're not a public employer, then these state rules do not apply. Rather, most employers are then governed by the Fair Credit Reporting Act.  As its core and very broadly, the FCRA imposes three general requirements on a company that seeks to obtain and use a background check (known as a "consumer report") for employment purposes:

• the company procuring the report must make certain disclosures to, and obtain authorization from, the job applicant;
• the company must make certain representations to the consumer reporting agency from which the report is procured; and,
• the company that uses that report for employment purposes must make certain disclosures to the applicant both before and after taking any adverse action against the applicant based on the report.

I've discussed these requirements in more detail in a 2007 post here.  The federal government has posted some good resources on this topic as well. Keep in mind that there are other rules that may govern the use of investigative reports, or reports in particular industries. Be sure to seek legal counsel if you're contemplating the use of such reports in your hiring process. 

If you're interested in the subject further, the Employee Screen blog does a good job of providing frequent updates in this area. 

Always keep in mind the following, though: background checks aren't perfect.  And distinctions matter: The last thing you want is to confuse a gun conviction with someone who enjoys getting into watergun fights (see above). 

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After months of on-again, off-again views, the Connecticut General Assembly yesterday overruled Governor Rell's veto of House Bill 5207, which changes the way that the State of Connecticut can conduct background checks on job applicants. 

You can view of the text of the bill here.  With yesterday's vote, it will now go into effect on October 1, 2010.

As I've stated previously, this bill does not impact the private workplace, although the rules regarding the use of background checks under federal law may still apply in the private employer context.  For more background, you can also see this earlier post as well. 

The CT Mirror has additional details on all of the veto overrides yesterday. 

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I can't say I saw this one coming.

I've previously reported on a bill (H.B. 5207) that passed the legislature.  That bill restricts the use of background checks for prospective state employees until after job offers have been made.

Yesterday, Governor Rell vetoed the measure (H/T CT Mirror). In her veto message, she states that while it is "worth in its objective, this bill poses numerous obstacles in practices.  And for all its obstacles, it is uncertain that any benefit will accrue to previously convicted applicants."  She goes on to point out a number of other issues with the bill, including that it fails to take into account the differences in state positions and types of convictions.

As I've previously noted, Connecticut law currently has some restrictions for public employers on the use of background checks, but no such restrictions apply to private employers. (Of course, there are federal restrictions under the Fair Credit Reporting Act, so employers who use them should still approach this topic carefully.)

According to a Senate Democratic representative quoted in the CT Mirror, there is a "solid chance" that it will be brought up for an override vote later this month.

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Despite initial opposition from the Chief State's Attorney and other state officials, the  Connecticut House of Representatives today approved a bill that would limit the use of criminal background checks on state workers. I've discussed the bill in a prior post.  The text of the bill (with an amendment that passed) is attached. 

Specifically, the crux of the bill is as follows:

Except for a position for which any provision of the general statutes specifically disqualifies a person from employment by the state or any of its agencies because of a prior conviction of a crime, no employer, as defined in section 5-270, shall inquire about a prospective employee's past convictions until such prospective employee has been deemed otherwise qualified for the position.

The CT News Junkie website has feedback from the vote.  The bill now moves on to the state Senate for a vote. 

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The Connecticut General Assembly is in full swing. One of the bills to keep an eye on is a bill that would limit the use of criminal background checks on prospective state workers.

Specifically, House Bill 5207 would amend Conn. Gen. Stat. 46a-80 by prohibiting an employer from inquiring "about a prospective employee's past convictions using a consumer report, as defined in section 31-51i, until such prospective employee has been deemed qualified for the position and a conditional offer of employment has been made to the prospective employee."

The bill has been voted favorably out of various committees and now moves to the Office of Legislative Research and Fiscal Analysis for a report. 

Whether this bill will ever get voted on in the House remains to be seen. It is opposed by the Chief State's Attorney who views it as an unreasonable restriction, particularly where there are matters of "public trust" implicated.  The CHRO is also opposed because "there can be significant costs associated with recruitment and screening of applicants for State agencies where criminal background checks are necessary. Waiting until an offer is made only to find out that the applicant is disqualified because of a criminal record is cruel to the person this bill seeks to protect"

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With some notable exceptions, only the bills that make it out of the Labor & Public Employee Committee have a chance for passage in the 2010 General Assembly session. (Of course, some measures get put in as amendments to other bills, but that's still more of the exception than the rule). 

So it's worth taking a quick peek to see what bills still have a chance of becoming law this year because of their approval from the Labor committee in the next few weeks.  A full list is available here, but these are a few of the more newsworthy ones: 

• H.B. 5060 would prohibit employers engaged in retail trade or accommodation and food service from denying a promotion to an employee solely because, before working for the employer, the employee had an arrest, criminal charge, or conviction which was (1) erased under the provision on juvenile delinquencies, families with service needs, youthful offenders, criminal charges that were dismissed or nolled, criminal charges resulting in not guilty verdicts, or pardoned convictions or (2) the subject of a provisional pardon.
  
  (It's a somewhat narrow provision because the law already prohibits employers from denying employment to a prospective employee or discharging or discriminating against an employee solely on the basis of a convection that is (1) erased under the same circumstances or (2) the subject of a provisional pardon.)
   
• In a broader measure, H.B. 5061 would prevent employers from using credit histories as a basis for employment decisions, with some narrow exceptions.  The bill has been referred to the Judiciary committee despite opposition from the CHRO, the CBIA, the Department of Public Safety and the Division of Criminal Justice. 
   
• H.B. 5204 would implement the recommendations of the Joint Enforcement Commission on Employee Misclassification and increase the penalties in instances of employee misclassification. 
   
• H.B. 5284 would add a new protected class of individuals to employment discrimination laws -- those who are victims of domestic violence. 
   
• H.B. 5285 is this year's workplace bullying bill which would require the Department of Administrative Services to report the number of complaints of bullying or abusive conduct in the state workforce to the General Assembly. 

These bills are in addition to the CHRO revisions and the paid sick leave measures that I've previously discussed as well. 

The regular session ends on May 5, 2010 so stay tuned over the next few weeks to see which measures move on, and which ones never get brought up for a vote. 

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Connecticut state law has long made it plain that the "policy of the state to encourage all employers to give favorable consideration to providing jobs to qualified individuals, including those who may have criminal conviction records." (Conn. Gen. Stat. 46a-79.)  

In a prior post, I've discussed how state law does not prohibit private employers from using conviction records to make employment decisions, while public employers do have some restrictions under Conn. Gen. Stat. 46a-80.

A new bill being (R.B. 5207) floated in the Connecticut General Assembly (a hearing on it was held on February 25th) would expand the protection by not allowing the public employer to ask about a conviction under after a conditional job offer has been made (with limited exceptions). Specifically: 

Except as provided in subsection (a) of this section, no employer, as defined in section 5-270, shall inquire about a prospective employee's past convictions using a consumer report, as defined in section 31-51i, until such prospective employee has been deemed qualified for the position and a conditional offer of employment has been made to the prospective employee.

Advocates for the measure held a press conference on the subject last week, according to a report from CT News Junkie.

The measure is still a long ways off from thorough consideration or even passage. It has yet to be voted out of committee.

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Criminal background checks have, in many ways, never been easier for employers. The internet has made that process quicker, cheaper and more transparent.

And yet, the question of "when" must employers run a criminal background check remains confusing. There are various laws on the subject but they are in different sections of the law and trying to come up with a master list is a difficult task.

So credit the Office of Legislative Research for coming up with a very useful primer this month on when background checks are required by state statutes.

So what does the report cover in detail? Well, the OLR report identifies "all occupations, persons, or other entities for which criminal history background checks are required by statute." It also discusses who is responsible for the criminal history checks and what procedures must be followed. Lastly, it identifies whether the subjects of these checks may be employed or licensed before the check has been completed.

Who is most likely to be covered? According to the OLR report:

Among the many individuals required to undergo criminal history checks are public school employees and school nurses, police officers, bail bondsmen and bail enforcement agents, private investigators, state marshals, locksmiths, pawnbrokers and precious metals dealers (at local option), and coaches with direct contact with children in police-sponsored athletic activities.

Criminal history checks are also required for applicants for nursing home licenses, various types of gaming related licenses, detective and security service licenses, taxicab company certificates, and at the discretion of the Department of Banking (DOB), various entities in the financial services industry. ...

In addition to these many types of individuals and businesses, the laws require criminal history checks for prospective employees of several state agencies including the Department of Motor Vehicles (DMV), Department of Children and Families (DCF), Division of Special Revenue (DSR), and Department of Mental Health and Addiction Services (DMHAS), as well as employees in the vital records unit of the Department of Public Health (DPH), Department of Correction (DOC) employees who have direct contact with inmates, and Department of Developmental Services (DDS) employees who provide direct client care.

Kudos to the OLR for putting together this very helpful primer; I recommend it as a great starting point for employers looking to figure out their legal obligations.

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Continuing the weekly series of basic (but perhaps not as widely-known) employment laws in Connecticut, this week's topic focuses on the job application.

Connecticut has an unusual law that prohibits employers from asking about any arrest, criminal charge or conviction that has been erased. 

Conn. Gen. Stat. 31-51i goes one step further too. It requires that certain language be used on the job application form to notify employees of this statute.

If an employer asks information about an applicant's criminal history (and it should definitely consider doing so), it must list the following in "clear and conspicuous language":

1. That the applicant is not required to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased pursuant to section 46b-146, 54-76o or 54-142a,
2. That criminal records subject to erasure pursuant to section 46b-146, 54-76o or 54-142a are records pertaining to a finding of delinquency or that a child was a member of a family with service needs, an adjudication as a youthful offender, a criminal charge that has been dismissed or nolled, a criminal charge for which the person has been found not guilty or a conviction for which the person received an absolute pardon, and
3.  That any person whose criminal records have been erased pursuant to section 46b-146, 54-76o or 54-142a shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.

One overlooked portion of the statute is Conn. Gen. Stat. 31-51i(f) which requires that access to the portion of an employment application form which contains information concerning the criminal history record of an applicant or employee be restricted. 

Specifically, it "shall only be available to the members of the personnel department of the company, firm or corporation or, if the company, firm or corporation does not have a personnel department, the person in charge of employment, and to any employee or member of the company, firm or corporation, or an agent of such employee or member, involved in the interviewing of the applicant." 

(Note that some financial institutions are still allowed to look at this information on the applicants, pursuant to an exception to this rule.)

Thus, in the dog days of summer, employers can continue to use this time to make sure that forms like job applications contain the most up-to-date information.

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The Connecticut Supreme Court today ruled (in a decision that will be "officially released" on June 24, 2008) that an agreement between an employer and his employees to defer an employee's past wages until the employer receives revenue sufficient to pay those wages, is contrary to public policy , therefore, an invalid defense in a criminal prosecution for failure to pay wages.

The case, State of Connecticut v. Lynch (available here) is somewhat unusual because there are not very many criminal prosecutions of a failure to pay wages. Most cases arise in the civil context. But not here.  Here, the employer failed to pay wages for several pay periods and then tried to get employees to agree that their back wages and future wages would be contingent on future revenue of the company.

You may recall a case a few months ago  Ravetto v. Triton Thalassic Technologies (discussed in this earlier post)  which held than an agreement to defer accural of wages in the future does not violate public policy.  Indeed, back then, the court noted:

We cannot conclude as a matter of law, however, that an employer experiencing financial hardship that honestly informs employees that it cannot meet payroll and that does not promise them that future payment will be made is acting unreasonably when it allows employees to continue to work with the hope of future payment. This is particularly true where the employees are experienced business people and members of management who choose to continue working in the hope that their services to the employer will improve the financial status of the company. We can imagine circumstances in which such a choice by employees may inure to their benefits particularly when the financial hardship is short-lived and the financial status of the company ultimately improves. In the present case, we recognize that Triton ultimately did pay the plaintiffs the wages that were due them.

So, what's the difference here? Here, the Court says that the Agreement at issue applied by prospectively but also retroactively and as such, violated public policy. In fact, at the time that the employer proposed this "agreement", the employer had already missed several payroll periods.  Thus, the Court said that an agreement to postpone accural of wages violates public policy when applied retroactively.  In the absence of an agreement on when wages accrue, it's safe to assume that they accrue when the employee performs work.

What's the takeaway for employers from this case? First and foremost, keep up with obligations of payroll.  In the extreme case, the Connecticut Department of Labor can and will file criminal charges against employers that fail to keep up. Failure to pay wages is not one of those "grey" areas. Set up a payroll system and stick to it.

But if the company begins getting cash flow problems, it may consider setting up agreements with employees that may make payment future wage payments contingent on revenue.  This often happens in small, start-up ventures where the work is being done ahead of revenue coming in the door. 

These agreements will be heavily scrutinized so getting sound legal advice on this issue (as many others) should help ensure that the agreement will hold up later on.  The Court took great pains to note that agreements on when the employee accrues wages may be okay, but employers should still tread carefully because of the important public policy of paying employees wages "on time".

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