rockRemember “Ban the Box” and the fair chance employment bill from earlier in the session?

Well, it passed last night. Sort of.

An amendment to the original bill essentially wiped the prior version clean.  Thus, whatever you think you knew about the measure you can put that aside.

What passed last night (House Bill 5237) was a very watered-down version of the measure.   It moves on the Governor’s office for signature and will become effective January 1, 2017.

The key provision is as follows:

No employer shall inquire about a prospective employee’s prior arrests, criminal charges or convictions on an initial employment application, unless (1) the employer is required to do so by an applicable state or federal law, or (2) a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment.

Any violation of this rule is subject to a complaint filed with the Labor Commissioner, but not a lawsuit.

I don’t expect that this will be the end of the issue however. The measure also creates a “fair chance employment task force to study issues” related to employment for individuals with a criminal history.

For now, employers need only amend their employment application to remove the box that asks about “prior arrests, criminal charges, or convictions.”  But nothing prevents a followup form from being requested or prevents these issues from being discussed in the job interview itself.

As the CBIA noted, the revised version that passed is a “wise reworking” that also affirms that businesses may run background checks on candidates if state or federal law prohibits people with criminal backgrounds being hired for a job.

Employers ought to review their existing applications and update them to comply with this new state law by January 1, 2017 (assuming the Governor’s signature, as noted.)

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 tYour correctional facilitiyhis 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.

Word came down late yesterday about an important case for employers that have California-based employees. 

The case, Brinker Restaurant Corp. v. Hohnbaum, is the first California appellate case to rule on the parameters of employers’ duties under California laws requiring rest and meal periods.  The California Workforce Resource Blog has the details, as does the What’s New in Employment Law Blog.  For an employee-based perspective, the Wage Law blog also has a good summary as well.

Why do I bring this up in a Connecticut blog? For a few reasons. First, there are several Connecticut employers that have California employees, whether through sales or otherwise. Second, California tends to be on the cutting edge of some legal issues. With nearly 36 million people (or roughly 10 times the population of Connecticut), those issues just tend to pop up more than in a small state like Connecticut.courtesy library of congress (flickr) - workers circa 1943

Third, the case provides a good opportunity to highlight the Connecticut meal period law — an underappreciated law that lays out what is necessary and is much different than California.

Connecticut’s law is found at Conn. Gen. Stat. 31-51i and states:

(a) No person shall be required to work for seven and one-half or more consecutive hours without a period of at least thirty consecutive minutes for a meal. Such period shall be given at some time after the first two hours of work and before the last two hours.

In plain English, what this means is that if an employee works a 7 1/2 hour shift, they are required to be given a 30-minute break for a meal.  For an employee working 9-5, the meal period must be between 11 a.m. and 3 p.m.

There are exemptions to requiring this meal period but, for the most part, it’s going to be good business practice to allow for the meal period anyways.  However, there may be instances where a break is not feasible. The Labor Department recognizes an exemption if one of the following conditions is met:

  1. complying with this requirement would endanger public safety;
  2. the duties of the position can only be performed by one employee;
  3. the employer employs less than 5 employees on that shift at that one business location (this only applies to that particular shift); or,
  4. the employer’s operation requires that employees be available to respond to urgent conditions, and that the employees are compensated for the meal period.

Note that this meal period applies to both exempt and non-exempt workers.  Employers who do not comply can be subject to some civil penalties.  While the law talks about a meal period, there is no requirement for a "rest" period in addition to this meal period. 

As others will surely note, each state has their own rules on meal period and breaks. Employers should not assume that what will work for one state, will work for another.  In Connecticut, the rules are not particularly onerous for employers and certainly all efforts should be made to comply with these particular rules.  

Photo courtesy Library of Congress , circa 1943 Clinton, Iowa

Without much fanfare, the Connecticut Judicial Branch is now posting criminal conviction records with free access to the public. You can view these records at this link here.  It is easy to search and easy to use.

The possibilities in the employment context are deep and wide as employers may now seek to review this database for hiring purposes or even to look up existing employees.  For example, the prior convictions of Joshua Komisarjevsky, one of the suspects accused in the murder of various Petit family members, are all up there.  You can see and trace that history fairly easily.   

First, a bit more about the details (from A Public Defender):

As promised by Representative Mike Lawlor months ago, the criminal disposition database is now online. You can search by last name and birth year, courthouse, docket number. This covers criminal and motor vehicle cases.

…It gives you his name, his lawyer’s name, his lawyer’s juris number (state bar number), his year of birth, his arrest date, the arresting agency, the sentencing date, and then a lot of information about the offenses of conviction, including the sentence, what he pled to initially, the date of the offense, the date of the verdict.

For state employers, the ease of this access can be a tease, particularly given the state’s law prohibiting the use of some criminal conviction information for purposes of making employment decisions.  Connecticut’s public policy is to encourage employers to hire qualified ex-offenders.  (Conn. Gen. Stat. Sec. 46a-79.) Law enforcement agencies (which include Sheriff’s Department court house security and transportation personnel) are the only governmental entities in the state that by law can deny employment based solely on a person’s criminal history.  In all other cases, state officials cannot deny felons employment, occupational licenses, or permission to engage in state-regulated professions without examining (1) the relationship between the crime committed and the job or license that the person is being considered for, (2) the convicted person’s degree of rehabilitation, and (3) the time elapsed since conviction or release.

For private employers, there are no such restrictions on the use of conviction records for purposes of making employment decisions.  The only relevant restrictions for employers prohibit the use of erased criminal records (Conn. Gen. Stat. Sec. 31-51i).  Indeed, subsection (f) reminds employers that while there is no restriction on the use of criminal records, such information must be restricted to those with a "need to know" within the company — normally the human resources personnel or the person making the decision to hire the applicant.

That said, the use of an outside service to conduct the background checks may still run into issues with the Fair Credit Reporting Act, as I outlined in a prior post.   

While the criminal defense attorney bar may lament an "invasion of privacy", this information has always been available to the public — just not as easily as before.   It is a very useful resource to have — whether for employers or in the civil litigation context.  Kudos the judicial branch for putting forth a database that is a useful resource for the public.