JaileDAs the General Assembly session heats up, several legislators are calling for passage of the so-called “Ban the Box” legislation.

Versions of this have been floated for years, but one legislator called this year’s bill the “most important bill” to come out of the legislature this year.

So, that means that employers ought to keep an eye on it as it passes through the process.  CT News Junkie wrote a lengthy piece on the bill where I am quoted.

Part of the bill on “ban the box” won’t be that controversial among some employers, but the bill goes beyond that in other provisions too.

The bill (H.B. 5237) contains provisions that would prohibit employers from asking about past criminal convictions until after a conditional offer of employment is made.

There are exceptions, however. For example: an employer may require an employee or prospective employee to disclose the existence of any arrest, criminal charge or conviction if such disclosure is required under any applicable state or federal law.

Thus, school districts should still be able to ask about criminal convictions because Connecticut law requires them to do so.

In the CT News Junkie’s article, I expressed concern that the bill would just one more type of regulation for employers. In addition, the bill would not stop employers from considering some criminal convictions anyways.

“Ban the box” legislation (named for the box where employees must check off whether they have any prior convictions) has been making its way through various states.  Overall, if you support the notion that prison is about rehabilitation, then older crimes ought to be less of a concern to employers.

But one of the things that has been underreported about the bill is that it would also go much further that some of those states.  Compare, for example, Massachusetts.  This is where employers should be concerned.

For example: take a look at subparagraph (d):

No employer or employer’s agent, representative or designee shall deny employment to a prospective employee solely on the basis that the prospective employee had … (2) a prior arrest, criminal charge or conviction for a misdemeanor if two years have elapsed from the date of such arrest, criminal charge or conviction, (3) a prior arrest, criminal charge or conviction for a felony if five years have elapsed from the date of such arrest, criminal charge or conviction, ….

So, the plain meaning of this proposed language would prohibit private employers from denying employment based “solely” on a past criminal conviction, no matter how severe, so long as it was outside the two-year for misdemeanor and five-year for felony timeframe.

This is where things get interesting. Suppose an applicant was convicted of negligent homicide charges in January 2011 from a drunk-driving incident.  It was not the first time of a DUI and the person serves five years in jail. That person was just released in January 2016.

Now suppose that the applicant applies to be a warehouse supplier with occasional driving duties.  Can the employer still refuse the hire the person even though they were released from prison last month and had engaged in an activity directly related to a job function (driving)?

Under the present language of the statute, there would obviously be a question as to what “solely” means.

Regardless, this type of consequence is one that has been overlooked in the discussion about the legislation thus far.

A public hearing on this bill was originally scheduled for today but a discussion of the bill has been put off to an undetermined committee meeting hearing date.

The CBIA has expressed some other reservations about the bill here.

Hopefully, legislators will take a look at this provision and others, and review the unintended consequences that flow from well-meaning intentions.