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.)

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.