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.)

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).