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.)

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.

In various posts, I’ve talked about how there is a slow but increasing trend to encourage employers to “ban the box” when it comes to job applications. That catchy (yet non-descriptive phrase) refers to a checkbox that is often found on job applications that asks applicants if they have any criminal convictions.

The news this week on that issue is that Target is the latest big employer to adopt such a  practice.    This is also in response to the EEOC’s guidance from 2012 strongly encouraging employers to eliminate the practice. 

It’s quite likely that the Connecticut General Assembly will also revisit the issue in the upcoming 2014 legislative session.

For employers, it’s important to note that banning the “box” does not mean that employers shouldn’t consider past convictions at all in determining an employee’s eligibility for employment.  Rather, like many background checks, the employer in those instances will wait until the applicant reaches the interview stage or gets a conditional job offer to ask about those convictions.

Right now though, EEOC guidance notwithstanding, private employers still remain free (mostly) to use those convictions as they see fit in the hiring process.

Public employers have some additional restrictions, so if you’re using criminal convictions to make decisions about who to hire, make sure you understand all of the limitations, which cannot be fully summarized in a single blog post.

Footnote: In an earlier post last July, I criticized the Office of Legislative Research for a report that I thought did not accurately state the status of the law in the area. I’m pleased to report that the OLR has updated their report to better reflect the status and I strongly recommend it as further background on this important subject.

The Office of Legislative Research, whom I’ve praised in several posts before (here and here), recently issued a report on the consequences of a felony conviction on employment. 

Overall, it does a good job summarizing the issues when it comes to state employment.

But later on in the publication it states the following when discussing the federal restrictions on employer use of criminal background information:

Asking job applicants to indicate whether they have been convicted of a crime is permissible but Title VII of the Civil Rights Act of 1964 appears to restrict an employer’s ability to use criminal background information in the hiring process (42 USC. § 2000e, et seq.). The Equal Employment Opportunities Commission (EEOC), the federal agency that enforces Title VII, has decided that disqualifying people who have criminal records from jobs is discriminatory because the practice disproportionately affects African American and Hispanic men. (Those two groups generally have higher criminal conviction rates than do Caucasian men.)

The EEOC has ruled repeatedly that covered employers cannot simply bar felons from consideration, but must show that a conviction-based disqualification is justified by “business necessity.” The legal test requires employers to examine the (1) nature and gravity of the offense or offenses, (2) length of time since the conviction or completion of sentence, and (3) nature of the job held or sought. Under this test, employers must consider the job-relatedness of a conviction, the circumstances of the offense, and the number of offenses (EEOC Guidance 915.002, April 25, 2012: http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf).

Back in April, I discussed the EEOC’s latest guidance at length.  As a result, I think the OLR’s report has misstated the EEOC’s position and made it sound like the rules on criminal background check are set in stone at the federal level.  They are not.

Indeed, the EEOC appears to be overreaching in its latest application of Title VII.  Courts have rarely interpreted it this broadly and thus the suggestion that Title VII “appears to restrict an employer’s ability” to use convictions is an overstatement.

Moreover, the OLR report’s suggestion that the EEOC has “ruled repeatedly” on the issue is also misleading; even the EEOC’s report suggests that it differs from some prior guidance.  And, contrary to the OLR report, the EEOC has not “decided” that it is “discriminatory” for employers to disqualify people who have criminal records from jobs; it merely issued guidance on the subject.  Indeed, the EEOC recognizes that there may be instances were it is not discriminatory.

What is important to understand is that “guidance” issued by the EEOC (which is what the April EEOC report is) is not the same as a regulation.  Indeed, even the EEOC says its guidance on criminal history is only “designed to be a resource for employers, employment agencies, and unions covered by Title VII; for applicants and employees; and for EEOC enforcement staff.”  It is not, as the OLR has said, a rule per se. 

A better explanation would be that the EEOC recently issued guidance that suggested to employers the blanket and blind use of background check information could have a disparate impact against some protected classes.  Thus, employers who use such information should consider the business needs of doing so and ensure that the use of such checks is fair. 

From my perspective, employers who seek to use criminal background checks to make hiring decision would be wise to read the guidance itself and seek appropriate counsel.  There are some best practices from the EEOC on the subject, but how employers use that guidance and in what ways, remains up in the air.

The EEOC yesterday released important new guidance for employers on the use of arrest and conviction records by employers under Title VII.  You can read the guidance here as well as a short question-and-answer document too. 

For employers in Connecticut, this new guidance only adds to the state-specific rules we have here in state and should leave most employers scratching their heads about yet another goverment regulation on something that had previously been cleared for use.

You can read my prior posts about the use of criminal records in Connecticut here, here and here.

The EEOC guidance doesn’t go as far as some has feared by banning background checks entirely but it still suggests a plan of action that will be onerous for many employers. 

Now, you may be asking how the EEOC is even involved in this issue given that their realm is typically discrimination cases.  But the EEOC says that they are concerned about two types of actions which may violate federal law. 

There are two ways in which an employer’s use of criminal history information may violate Title VII (“disparate treatment discrimination”). First, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin.

Second, even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.

 How can employer  consistently meet the “job related and consistent with business necessity” defense?  The EEOC suggests two situations:

  • The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or
  • The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job … The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.

Of course, the EEOC also notes that such an individualized assessment is not required by Title VII “in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.”

As Jon Hyman, of the Ohio Employer’s Law Blog, is quick to note — some of this guidance may be overreaching by the EEOC.  Nevertheless, employers would be wise to read it and consider implementing some of the best practices suggested by the EEOC. Among them:

  • Eliminate policies or practices that exclude people from employment based on any criminal record.
  • Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.
  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
  • Identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
  • Identify the criminal offenses based on all available evidence.
  • Determine the duration of exclusions for criminal conduct based on all available evidence.
  • Include an individualized assessment.
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultations and research considered in crafting the policy and procedures.
  • Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.
  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
  • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

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: 

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.