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This Legislative Brief is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice. © 2015 Zywave, Inc. All rights reserved.

“Ban the Box” Laws “Ban the box” laws limit an employer’s ability to ask a job applicant about his or her criminal background as part of the hiring process. In 1998, Hawaii became the first state to adopt a “ban the box” law. Since then, a number of states and municipalities have passed similar legislation.

BAN THE BOX OVERVIEW

These laws prohibit companies from asking job candidates about their criminal backgrounds on job applications or as part of the initial application and interview process. The specific requirements and restrictions vary depending on the applicable law, but there are some similarities between them.

In general, employers are not completely prohibited from asking about an individual’s criminal background. However, they are typically prohibited from doing so until later in the hiring process as part of a conditional job offer. In most cases, the employer can withdraw the offer of employment if the applicant has a conviction record that bears a rational relationship to the duties and responsibilities of the position. Some laws also limit the number of years an employer can look back into an applicant’s or employee’s criminal history.

FEDERAL LAW

On April 25, 2012, the U.S. Equal Employee Opportunity Commission (EEOC) issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964. The guidance states that an “employer's use of an individual's criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964.”

Under federal law, an employer’s use of criminal history information may violate Title VII in two ways. 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. This is disparate treatment discrimination.

Second, even when an employer applies criminal record exclusions uniformly, the exclusions may still cause a disproportionate and unjustifiable exclusion of individuals of a particular race or national origin. This is disparate impact discrimination. If the employer cannot show that an exclusion is “job related and consistent with business necessity” for the position being considered, the exclusion is considered unlawful under Title VII.

Title VII does not regulate when or how an employer might acquire a candidate’s or employee’s criminal history information. However, the Fair Credit Reporting Act establishes procedures that employers must follow when they obtain criminal history information through a third-party consumer reporting agency. In addition, some state laws provide protections to individuals related to criminal history inquiries by employers.

STATE LAWS

As of fall 2015, 19 states have passed “ban the box” legislation for public employers. Seven states have adopted laws for both public and private employers.

“Ban the Box” Laws

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State Employers: Private or

Public

Job-related Screening Statutes

California Public Cal. Lab. Code § 432.9

Colorado Public There must be a "direct relationship" between the conviction and the job.

CO House Bill 12-1263

Connecticut Public Employers must consider the nature of crime and the relationship to the job.

CT Gen. Stat. § 46a-80

Delaware Public Employers must consider the nature of offense and the job.

Delaware House Bill 167

Georgia Public Executive Order 02.24.15.01

Hawaii Private & Public Conviction must bear "rational relationship" to the position.

Haw. Rev. Stat. § 378-2

Illinois Private & Public 820 ILCS 75/1

Maryland Public Senate Bill 4

Massachusetts Private & Public MGLA 151B §4; MGLA 6 § 171A

Minnesota Private & Public Conviction must "directly relate" to the position.

MN 364.021

Nebraska Public Neb. Rev. Stat. § 48-202

New Jersey Private & Public N.J.S.A 34:6B-11 to 19

New Mexico Public Conviction must "directly relate" to employment.

N.M. Sta. §§ 28-2-1 to 28-2-6

New York Public Executive Action

Ohio Public Administrative Policy

Oregon Private & Public House Bill 3025

Rhode Island Private & Public RI Gen. Law § 28-5-6; 28-5-7

Vermont Public Executive Order 03-15

Virginia Public Conviction must be job-related. Executive Order 41

Source: National Employment Law Project

Note that, in addition to state laws, municipal requirements may also apply. Approximately 100 municipalities have enacted similar laws.

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California “Ban the Box” Law

This guide is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. It is provided for general informational purposes only. It broadly summarizes state statutes and regulations generally applicable to private employers, but does not include references to other legal resources unless specifically noted. Readers should contact legal counsel for legal advice.

© 2015 Zywave, Inc. All rights reserved. DMK 11/15

Many states nationwide have passed laws limiting the ability of employers to ask job applicants about their criminal records. These laws are known as “ban the box” laws and generally prohibit employers from automatically disqualifying job applicants based on their criminal backgrounds.

California’s ban the box law, AB 218, took effect on July 1, 2014. In addition, various cities and counties adopted ban the box prohibitions prior to AB 218 being passed. AB 218 only applies to public agencies in California, but many private companies have stopped using the conviction “box” on job applications.

COVERED EMPLOYERS

AB 218 applies to all state and local agencies. The law defines a state agency as any state office, officer, department, division, bureau, board, commission or agency. A local agency is defined as any county or city, including a charter city or county, or any special district.

REQUIREMENTS

All state and local agencies are prohibited from asking job applicants to disclose information concerning their criminal conviction histories until it has been determined that applicants meet the minimum employment qualifications for the positions. The prohibition applies to both written and oral disclosures.

AB 218 does not prohibit covered agencies from conducting a conviction history background check after it has been determined that the applicant meets the minimum employment qualifications for the position.

EXEMPTIONS

AB 218 does not apply to:

• Any position for which a state or local agency is required by law to conduct a conviction history background check;

• Any position within a criminal justice agency; or

• Any individual working on a temporary or permanent basis for a criminal justice agency on a contract basis or on loan from another governmental entity.

MORE INFORMATION

Contact Insurance Office of America for more information on fair employment laws in California.

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Hawaii “Ban the Box” Law

This information is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. It is provided for general informational purposes only. It broadly summarizes state statutes and regulations generally applicable to private employers, but does not include references to other legal resources unless specifically noted. Readers should contact legal counsel for legal advice.

© 2015 Zywave, Inc. All rights reserved. DMK 12/15

Hawaii became the first state to adopt a “ban the box” law in 1998. The law limits an employer’s ability to ask job applicants about their criminal backgrounds.

COVERED EMPLOYERS

The law applies to all private and public employers in Hawaii. An employer is defined as any person, including the State of Hawaii or any of its political subdivisions, that has one or more employees. The law does not cover federal employers.

REQUIREMENTS

An employer may not ask about an applicant’s criminal record until after the applicant has received a conditional offer of employment. The offer may be withdrawn if the applicant has a conviction record that bears a rational relationship to the duties and responsibilities of the position.

An employer may also consider an individual’s criminal conviction record when making decisions about termination of employment or the terms, conditions or privileges of employment, if the record bears a rational relationship to the duties and responsibilities of the position.

Employers may only consider conviction records within the last ten years, excluding periods of incarceration. If the applicant or employee claims that the period of incarceration was less than that shown on the record, the employee must have an opportunity to provide evidence of the correct information.

EXEMPTED POSITIONS

Some employers may be required to conduct criminal history record checks of applicants and employees in certain positions to comply with state or federal laws. Hawaii’s ban the box limitations do not apply in these situations.

Hawaii’s ban the box law does not apply to the positions listed below; however, background checks still may only be conducted after a conditional offer of employment has been made:

1. Positions working with or in close proximity to children, vulnerable adults, senior citizens, or the physical or developmentally disabled;

2. Positions in emergency management or service and community volunteers working in the area of homeland security;

3. Positions involving the use and handling of firearms;

4. Positions within an airport, including airport security and baggage screeners and handlers;

5. Positions in a detective or security guard agency;

6. Positions in a federally insured financial institution;

7. Positions in public libraries and the departments of health and public safety; and

8. Board of director positions for cooperative housing projects and condominium associations.

More Information

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Fair Employment – Ban the Box

This guide is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. It is provided for general informational purposes only. It broadly summarizes state statutes and regulations generally applicable to private employers, but does not include references to other legal resources unless specifically noted. Readers should contact legal counsel for legal advice.

© 2014 Zywave, Inc. All rights reserved. BZ 08/14, DMK 5/15

The Job Opportunities for Qualified Applicants Act (Act), also known as “ban the box,” places restrictions on when employers may make pre-employment inquiries into an applicant’s criminal background or history. The law went into effect on Jan. 1, 2015 and impacts Illinois employers’ hiring practices.

COVERED EMPLOYERS

The Act applies to private employers that have 15 or more employees in the current or preceding calendar year, as well as employment agencies. Public employers are excluded from the Act.

REQUIREMENTS

Under the Act, a covered employer or employment agency may not inquire about, consider or require disclosure of an applicant’s criminal record or history until after the applicant has been determined qualified for the position and the employer or agency has notified the applicant that he or she has been selected for an interview. In the case of a position for which an employer does not conduct interviews, inquiries into an applicant’s criminal background or history cannot occur until after a conditional offer of employment has been extended to the applicant.

Although the Act places restrictions on pre-employment inquires, employers may notify applicants in writing of specific offenses that will disqualify them from employment due to a federal or state law, or due to the employer’s policy. Additionally, the Act itself does not prohibit employers from denying applicants who have been convicted of certain offenses from a position as long as the process for inquiring about those convictions has been followed.

EXEMPTED POSITIONS

The requirements of the Act do not apply to certain exempted positions. Specifically, it does not apply to positions where:

• Employers are required to exclude applicants with certain criminal convictions from employment due to a federal or state law;

• The position requires a standard fidelity bond or an equivalent bond, and an applicant’s conviction of one or more specified offenses would disqualify the applicant from obtaining the bond; or

• The position requires licensing under the Emergency Medical Services System Act.

PENALTIES

The Illinois Department of Labor (IDOL) is responsible for investigating alleged violations of the Act. If the IDOL finds that a violation has occurred, it may impose penalties ranging from a written warning for a first violation up to $1,500 fines for repeated violations or failure to remedy a previous violation.

COMPLIANCE STEPS FOR EMPLOYERS

Employers should thoroughly review their employment applications and policies to ensure that they are in compliance with the Act and other state and federal laws regarding handling arrest records and convictions.

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Massachusetts “Ban the Box” Law

This guide is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. It is provided for general informational purposes only. It broadly summarizes state statutes and regulations generally applicable to private employers, but does not include references to other legal resources unless specifically noted. Readers should contact legal counsel for legal advice.

© 2015 Zywave, Inc. All rights reserved. DMK 11/15

Massachusetts was one of the first states to “ban the box” when its criminal offender record information law went into effect in 2010. The law prohibits most employers from asking job candidates about their criminal histories on an initial written job application.

COVERED EMPLOYERS

The law applies to all private and public (state, county and city) employers.

REQUIREMENTS

All employers are prohibited from asking job applicants about their criminal histories on the initial written job application.

If an employer is in possession of a candidate’s criminal record information, it must provide the applicant with the information prior to asking him or her about it. In addition, if an employer decides not to hire an applicant in whole or in part because of the applicant’s criminal record, the employer must provide the applicant with a copy of the record that influenced the hiring decision.

Employers that conduct five or more criminal background investigations in a year are required to implement and maintain a written criminal record information policy. The policy must include procedures for:

• Notifying applicants of the potential for an adverse decision based on the criminal record information;

• Providing a copy of the criminal record information and the written policy itself to applicants: and

• Providing information to applicants concerning the process for correcting misinformation on their criminal records.

EXEMPTIONS

The law allows an employer to ask about a candidate’s criminal history:

• For positions for which a federal or state law, regulation or accreditation disqualifies an applicant based on a conviction; or

• If the employer is subject to an obligation under a federal or state law or regulation not to employ people who have been convicted of crimes.

PENALITES

The law imposes penalties on those who request or require a person to provide a copy of his or her criminal record except in situations authorized by law. The penalties include imprisonment for up to one year or a fine of up to $5,000 for an individual or $50,000 for an entity. In addition, the law prohibits harassment of the subject of a criminal record, punishable by imprisonment of up to one year, or a fine of up to $5,000.

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Contact Insurance Office of America for more information on fair employment laws in Massachusetts.

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Fair Employment Laws – Minnesota “Ban the Box” Law

This guide is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. It is provided for general informational purposes only. It broadly summarizes state statutes and regulations generally applicable to private employers, but does not include references to other legal resources unless specifically noted. Readers should contact legal counsel for legal advice.

© 2015 Zywave, Inc. All rights reserved. BZ 01/15

Minnesota is one of a growing number of states to have enacted legislation limiting employers’ ability to ask job applicants about their criminal records. This law is more commonly known as Minnesota’s “ban-the-box” law (Minnesota law). This Employment Law Summary provides an overview of the Minnesota law’s requirements, exemptions and enforcement.

REQUIREMENTS

The Minnesota law restricts the timing of pre-employment inquiries by most private employers into job applicants’ criminal pasts. Under the Minnesota law, most employers are prohibited from asking job applicants about their criminal histories on employment applications. An employer that is subject to the Minnesota law may not inquire into, consider or require disclosure of an applicant’s criminal history until:

• An applicant has been selected for an interview; or

• If there is no interview, until a conditional job offer of employment has been extended to the applicant.

The Minnesota law does not require employers to hire any candidates with criminal histories, and employers may still conduct background checks. Additionally, the Minnesota law does not prohibit an employer from notifying an applicant that his or her criminal background may disqualify the applicant from a particular position.

EXEMPTIONS

The Minnesota law does not apply to an employer who has a statutory duty to conduct criminal history background checks or otherwise take into consideration a potential employee’s criminal history during the hiring process. Positions that frequently require criminal background checks under Minnesota law include, but are not limited to, teachers, school bus drivers, peace officers, private detectives, racetrack employees, apartment managers and residential mortgage originators.

ENFORCEMENT AND PENALTIES

The Minnesota Department of Human Rights (MDHR) is charged with enforcing the law. The Minnesota law does not provide a private cause of action, meaning individuals may not bring civil lawsuits against their employers for violations of the law. However, the MDHR will investigate violations of Minnesota’s ban-the-box-law.

If the MDHR determines that an employer has violated Minnesota’s ban-the-box law, it may impose the following penalties, based on the employer’s size:

NUMBER OF EMPLOYEES PENALTY

1 to 10 employees $100 for each violation, not to exceed $100 in a calendar month

11 to 20 employees $500 for each violation, not to exceed $500 in a calendar month

21 or more employees $500 for each violation, not to exceed $2,000 in a calendar month

Fair Employment Laws – Minnesota “Ban the Box” Law

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For more information on Minnesota’s fair employment laws, please consult Insurance Office of America or visit the MDHR’s website.

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New Jersey “Ban the Box” Law

This guide is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. It is provided for general informational purposes only. It broadly summarizes state statutes and regulations generally applicable to private employers, but does not include references to other legal resources unless specifically noted. Readers should contact legal counsel for legal advice.

© 2016 Zywave, Inc. All rights reserved. DMK 1/16

With the passing of “The Opportunity to Compete Act,” New Jersey became one of a growing number of states to enact legislation limiting an employer’s ability to ask a job applicant about his or her criminal background. This “ban the box” law went into effect March 1, 2015.

COVERED EMPLOYERS AND EMPLOYEES

The act applies to any New Jersey employer that has had 15 or more employees over the last 20 calendar weeks and does business, employs people or takes applications for employment within the state of New Jersey. The 15 employees do not all have to be located in New Jersey. This includes private employers, as well as “the State, any county or municipality, or any instrumentality thereof.” The Act also covers job placement and referral agencies and other employment agencies. It does not cover federal government departments, agencies, boards or commissions.

The act pertains to prospective employment within the state of New Jersey. Employment includes “any occupation, vocation, job, or work with pay, including temporary or seasonal work, contingent work, and work through the services of a temporary or other employment agency; any form of vocational apprenticeship; or any internship.”

An employee is an individual who is hired to perform work for an employer for pay. This includes interns and apprentices. However, individuals employed in domestic service in a person’s home, independent contractors, and directors or trustees are exempt.

REQUIREMENTS

A covered employer may not ask about an applicant’s criminal record until after the initial employment application process has concluded (i.e., post-interview). Prohibited inquiries include written inquiries (such as applicant forms, questionnaires and internet searches) and verbal inquiries.

The regulations define an interview to be “any live, direct contact by the employer with the applicant, whether in person, by telephone, or by video conferencing, to discuss the employment being sought or the applicant’s qualifications.” It does not include “the exchange of emails or the completion of a written or electronic questionnaire.”

Multi-state employers, using a uniform applications and forms, may include a question regarding criminal record history. However, the following statement must be included immediately before the questions. “An applicant for a position the physical location of which will be in whole, or substantial part, in New Jersey is instruction not to answer this question.”

EXEMPTIONS

The requirements of the act do not apply to certain positions and situations. Specifically, they do not apply when:

• The position is in law enforcement, corrections, the judiciary, homeland security or emergency management;

• A criminal history background check is required by law or regulations, or where an arrest or conviction could prevent the person from performing the essential

Fair Employment Laws

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• functions of the position, or could restrict an employer’s ability to engage in specific business activities based on the criminal records of its employees; or

• The position is designated by the employer to be part of a program or effort designed to encourage the employment of individuals with an arrest or conviction record.

VOLUNTARY DISCLOSURE

An employer is allowed to ask about an applicant’s criminal record during the initial employment application process, if the applicant voluntarily discloses (verbally or in writing) any information regarding his or her criminal record.

APPLICANT’S CRIMINAL RECORD

This act does not prohibit covered employers from establishing a policy that is “consistent with other applicable laws, rules, and regulations” which requires the successful completion of a criminal background check as a condition of employment.

JOB ADVERTISEMENTS

When advertising or soliciting for employees, a covered employer cannot state that an applicant who has been arrested or convicted will not be considered.

PENALTIES

The New Jersey Commissioner of Labor and Workforce can impose a civil penalty up to $1,000 for the first violation, $5,000 for the second violation and $10,000 for each subsequent violation.

MORE INFORMATION

Contact Insurance Office of America for more information on fair employment laws in New Jersey.

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Rhode Island “Ban the Box” Law

This information is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. It is provided for general informational purposes only. It broadly summarizes state statutes and regulations generally applicable to private employers, but does not include references to other legal resources unless specifically noted. Readers should contact legal counsel for legal advice.

© 2015 Zywave, Inc. All rights reserved. DMK 11/15

Rhode Island’s Fair Employment Practices Act (FEPA) prohibits employers from asking job applicants about their criminal backgrounds until the first interview. The law went into effect Jan. 1, 2014.

COVERED EMPLOYERS

The law applies to public and private employers with four or more employees, as well as any person acting in the interest of one of these employers, either directly or indirectly.

REQUIREMENTS

The law prevents covered employers from asking about arrests, charges and convictions prior to the job interview stage of hiring. Specifically, it prohibits employers from inquiring on any employment application whether applicants have ever been arrested, charged with or convicted of any crimes. The law also prohibits other oral or written inquiries on those topics prior to the job interview. Limited exceptions apply.

The law defines a “conviction” as any verdict or finding of guilt or any pleas of guilty or nolo contendere to a criminal charge.

EXEMPTIONS

Exemptions apply to applications for law enforcement agency positions or positions related to law enforcement agencies.

The law also does not apply when:

• A federal or state law or regulation creates a mandatory or presumptive disqualification from employment based on a person's conviction of one or more criminal offenses; or

• A standard fidelity bond or an equivalent bond is required for the position for which the applicant is seeking employment and his or her conviction of one or more specified criminal offenses would disqualify the applicant from obtaining such a bond.

PENALTIES

The Rhode Island Commission for Human Rights (RICHR) and Rhode Island courts have the authority to award an aggrieved applicant with remedies including back pay, compensatory damages, punitive damages, and attorney's fees and costs.

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Contact Insurance Office of America for more information on fair employment laws.