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.)

First off, I should let you know that I am a poor substitute for Harrison Ford.

But, don’t let that dissuade you from saving October 16th as the date for a terrific conference that I’m helping to plan.  The title is “Raiders of the Data Ark” and the subject is “2014 Data Privacy & Cyber Security Summit: Practical Tips and Legal Risks for Connecticut Companies”.

It will be held at the Crowne Plaza in Cromwell from 8a-2p and will include breakfast, lunch, and several hours of notable speakers.

The conference, which is being run by both Shipman & Goodwin (my firm) and the Connecticut chapter of SHRM, is designed for operations personnel, in-house counsel, human resources personnel, general managers, finance managers and anyone else interested in solution-oriented approaches to the topic.

Registration will be up soon, so for now, just save the date and watch this space for more information!

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.

As I get closer to the five year anniversary of this blog next month, I continue to take a look again at topics I covered early on.  One of those topics was the oft-overlooked statute of Conn. Gen. Stat. 53-303e.  That statute purports to make it a crime for employers to require employees to work on his or her designated Sabbath, among other things.

I noted back then that you could find the statute on the Connecticut Department of Labor’s website.

But there was a problem, I noted. Part of the statute was been overruled by the Connecticut Supreme Court nearly 25 years ago.  So effectively the statute is devoid of meaning. Of course, I said, you wouldn’t know that from the statute.

So what’s changed since then? Amazingly, nothing. It remains firmly on the books of the Connecticut state statutes.  You can be fined $200 for each violation.  And confusingly, the Connecticut Department of Labor still lists it among the statutes that employers need to follow closely.

What should be done? The General Assembly each year “cleans up” old statutes with bills that are technical in nature.  When it considers the labor & employment side of things, hopefully the legislature can remove the portion of the statute that has been overruled. Frankly, the entire statute is just out of place as well, but that’s an issue for another day.

Will it happen? Probably not. As I’ve noted before, once a law is on the books, it’s hard to remove. This statute — 25 years after a portion has been overruled — remains a shining example of this.  So, for employers, it’s important to note that you can’t believe everything you read — even if it appears on a government website.

In my post last week about the reporting of crimes, an avid reader of the blog left a great comment that noted that elder abuse must also be reported by certain class of people. 

Photo Courtesy of Library of Congress

Since many of you may not be aware of such a requirement, it can be found at Conn. Gen. Stat. 17b-451 and the related statues. Here are a few of the notable provisions:

First, section (a) requires that “Any physician or surgeonany resident physician or intern … any registered nurse, any nursing home administrator, nurse’s aide or orderly in a nursing home facility, any person paid for caring for a patient in a nursing home facility, any staff person employed by a nursing home facility, any patients’ advocate and any licensed practical nurse, medical examiner, dentist, optometrist, chiropractor, podiatrist, social worker, clergyman, police officer, pharmacist, psychologist or physical therapist,” who has “reasonable cause” to believe that an elderly person has been abused or neglected, must report such abuse within 72 hours to the Department of Social Services.

What’s the penalty? It’s a misdemeanor if it is not reported, with fines and more serious penalties for repeat offenders.

Can other people report that abuse? Section (c) says that “Any other person having reasonable cause to suspect or believe that an elderly person is being, or has been, abused, neglected, exploited or abandoned, or who is in need of protective services may report such information in any reasonable manner to the commissioner or the commissioner’s designee.”

The statute provides for protection for those who make the reports, including immunity for such a report (under section (d)).  In addition, that person cannot be fired or retaliated against by an employer for making the report (under section (e)). 

And who is “elderly”? Anyone who is 60 years or older.

For employers who have employees in the above roles, be sure to remind those employees of the requirements of the state statute and have a policy in place so that employers know where to turn with questions.

As we enter a holiday weekend, my colleague, Mick Lavelle uncovered an odd circumstance of unemployment compensation law.  He discusses it below. Have a great holiday weekend.

The old adage that crime does not pay has been slightly modified by the Connecticut Department of Labor, Employment Security Division, which administers unemployment compensation benefits.

Unemployment compensation is paid by the State to people who lose their jobs, unless they are disqualified for benefits.

Voluntarily quitting is a disqualification, as are various types of bad conduct listed in the unemployment compensation statutes [Conn. Gen. Stat. 31-236], such as larceny of currency, willful misconduct, knowing violations of reasonable rules, and “larceny of property or service, the value of which exceeds $25.”

You might think that some of these disqualifiers would overlap.

For example, stealing property, even of less than $25 in value, would undoubtedly be willful misconduct, and would also violate a reasonable rule in most if not all workplaces that theft from the company is grounds for discharge.

But in a ruling dating from 1997, the Unemployment Security Division Board of Review decided that the statutory reasons for disqualification should be read in the disjunctive, a legal term meaning mutually exclusive alternatives. The Board reasoned that larceny was a disqualifier exclusive of other misconduct, but that when property or services were taken instead of cash, the Legislature had permitted disqualification only if the value exceeded $25.

In other words, if an employee stole $20 worth of goods and was fired, he committed larceny, so that he could not be disqualified under another type of misconduct. But he didn’t steal more than $25 worth of property, so he couldn’t be disqualified under the larceny category either. In short, he could steal up to $25 of property and still collect unemployment compensation benefits.

Perhaps in this instance, the new adage is that petty crime sort of pays.