Tag Archives: Criminal record

State Survey – Considering Criminal Convictions in Private Employment Decisions

Contributed By Suzanne Newcomb, April 22, 2021

cv review flat illustration. hand with magnifier over curriculum vitae

As we previously discussed, Illinois has moved beyond “ban-the-box” and now significantly restricts employers’ ability to consider criminal convictions when making employment decisions. (For more details see our employer’s guide and join our complimentary webcast on April 29, 2021.)

Illinois is not an outlier. Several states have enacted or are considering similar legislation. Below is a short summary of these state laws applicable to private employers. All of these statutes have exceptions. Note too, the fact that a state is not listed does not necessarily mean it has no restrictions. These laws are nuanced and rapidly changing and many local governments have enacted their own regulations. Seek advice from trusted counsel before basing an employment decision on an individual’s criminal history.

California: Employers with 5 or more employees may not deny a position based (in whole or in part) on a criminal conviction without first making an individualized assessment (in accordance with the statute) as to whether the conviction has a direct and adverse relationship to the job such that it justifies denying the position. The law sets forth a detailed process to regulate an employer’s consideration of criminal convictions and imposes notice, disclosure, and waiting period requirements if an employer acts on a conviction.

Connecticut: It is currently unlawful to deny employment with the state on the basis of a criminal conviction without considering factors set forth in the statute. Pending legislation would expand the law to private employers.

Hawaii: It is unlawful to base an employment decision on a conviction unless it is a felony conviction in the last 7 years, or a misdemeanor conviction in the last 5 years, and the conviction bears a “rational relationship” to the duties of the position. 

New York: It is unlawful to take an adverse action based on criminal history unless there is a direct relationship between the conviction and the employment position or if the employment would pose an unreasonable risk. The statute includes factors to be considered in making this assessment. Upon request, the employer must provide a written statement setting forth the reasons for denying employment on the basis of conviction. 

Pennsylvania: It is unlawful to consider a job applicant’s conviction history unless the conviction relates to the applicant’s suitability for the particular position sought. An employer also must notify the applicant if employment was denied, in whole or in part, on the basis of criminal history.

Washington D.C.: Private employers with more than 10 employees may not base employment decisions on criminal convictions unless there are reasonable and legitimate business reasons in accordance with factors set forth in the statute.

Wisconsin: It is unlawful to discriminate on the basis of an arrest record or conviction record. There are exceptions to this rule for convictions and pending criminal charges that substantially relate to the particular job.

In addition, ban-the-box laws apply to private employers in California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, and Washington D.C., as well as many other cities and counties across the country (and a total of 36 states have some form of ban-the-box laws applicable to public employment). Many state and local governments also prohibit or regulate employers’ consideration of convictions that have been sealed or expunged, arrests that did not result in conviction, and/or juvenile convictions.

“Convicts Shall Apply” – So Says the State of Minnesota (And Illinois is Likely Next)

Contributed By Jeffrey A. Risch

In line with a minority but growing trend, on May 13, 2013 Minnesota enacted the Criminal Background Check Act.  The new law, effective January 1, 2014, restricts an employer’s ability to request any criminal history (including actual convictions) from a job applicant.  The new law allows employers to only consider or require disclosure of an applicant’s criminal history until after the applicant has been selected for an interview, or if there is not an interview, before a conditional offer of employment is made.  Violations will be investigated and monetary penalties assessed, exclusively by and through the Minnesota Department of Human Rights.  Exceptions do exist for employers who have a statutory duty to inquire, request and consider criminal convictions or histories. Minnesota joins other states like Massachusetts and Hawaii with the so-called “BAN THE BOX” legislation directed at private and public employers.  And, Illinois is likely next…

Illinois’ proposed Employee Background Check Act (HB 3005), would prohibit any employer, on the face of an employment application or through any other means, from inquiring into, considering or requiring disclosure of the criminal record or criminal history of a candidate for employment until the candidate has been selected for an interview by the employer or, if there is not an interview, before a conditional offer of employment is made to the candidate.  However, such restrictions would not apply to employers who are required to exclude candidates from employment because of municipal, state, or federal law or regulation.  Also, under the proposed law, if an employer hires a candidate pursuant to the law, the employer shall have a rebuttable presumption in any legal proceeding against the employer regarding the employment of the candidate that the employer performed its due diligence and acted in good faith in hiring such candidate. The Illinois Department of Labor would investigate and assess monetary penalties for willful and knowing violations.

All employers should pause and carefully review their applications as well as their hiring practices.  The “one size fits all” approach is done (and has been for quite some time) for multi-state employers.  Also, under EEO and anti-discrimination laws, most employers are strictly prohibited from using criminal convictions or histories as a per se basis to deny employment or other opportunities in the workplace.

SmithAmundsen LLC continues to monitor such developments on a local, regional and national basis for our clients and contacts.

Multi-State Employers: Do These New State Laws Pertain To You?

Contributed by Heather Bailey

Arizona Min. WageBe sure you’ve increased minimum wage to $7.80.

California Criminal Background Checks:  Effective January 1, 2013, if you perform background checks by obtaining state criminal history information, you must start giving applicants  a copy of their state summary criminal history information – promptly – if this information played a part in any adverse action like not hiring them for the job.

Florida Min. Wage:  Minimum wage now equals $7.79 per hour.

Georgia Criminal Records:  In July, arrest and criminal records access is going to change. For example, access will no longer be for any arrest and employers must supply either fingerprints or detailed information regarding the individual, such as full name, address, Social Security number, race, sex, and date of birth, which is accompanied by a signed consent on a form approved by the Georgia Bureau of Investigation’s Crime Information Center.

Illinois Workplace Violence Initiative:  The Illinois Chamber of Commerce is actively working on legislation that will give employers an avenue to get temporary restraining orders when persons cause threat of violence in the workplace.   Stay tuned for this much needed legislation!

Michigan Employee Private Social Media:  In December 2012, Michigan joined the bandwagon of prohibiting employers from requiring employees and applicants to give up their social media logins and passwords and from taking adverse action against them should they not comply with the request.  Effective March 28, 2013, Michigan will become one of our nation’s right to work states.  So, generally, employers cannot require employees to join or remain a member of a union.  Finally, you may now be able to collect a minimal administrative fee (i.e., $1-$2) for child support garnishments each time a deduction is made.

Missouri Min. Wage:  Minimum wage is raised to $7.35 an hour – be sure you’ve made this increase!

New Jersey Posting Requirements:  If you have 50 or more employees, there are new notice and posting requirements in place from the New Jersey Department of Labor and Workforce Development and Department of Law and Public Safety’s Division on Civil Rights for gender equality in the workforce and anti-discrimination.

Vermont Min. Wage: Your minimum wage went up too – $8.60 per hour.

State laws change every day.  Make sure you are aware of them all for the states in which you have employees!

EEOC Issues New Guidance on the Use of Arrest and Conviction Records in Employment Decisions

Contributed by Jill Cheskes

On April 24, 2012, by a 4-1 vote, the EEOC issued guidance that stated that Title VII does not prohibit the use of criminal background checks but that employers could violate Title VII if they intentionally discriminate against individuals with a criminal history or if their policies have a disparate impact based on race or national origin absent business necessity.  The EEOC stated that “individualized assessments” should occur when an employer receives negative information from a background check so as not to discriminate.  Nothing in Title VII requires any individualized assessment but the EEOC guidance now does.

Additionally, the EEOC stated that following state and local law may not be a defense.  The EEOC also recommended that employers “ban the box” on the application form that asks employees if they have been convicted of a felony.  The guidance does not, in any way, prohibit background checks, however, this suggestion of “banning the box” has been met with opposition. 

Practically speaking, there is little reason for an employer to do such a thing and certainly Title VII does not require it.  Quite honestly, an employer faces a host of other liability issues if they fail to perform a background check that would have revealed negative information.  At the end of the day, the guidance probably does not do more than most employers are likely already undertaking with these issues but the EEOC is now saying some of these things are required under Title VII. 

Employers are still able to use this information to deny employment but they must assess whether the hiring policies intentionally discriminate or have a disparate impact on minority candidates.