Connecticut recently enacted the Fair Chance Employment Act that is a modified “ban-the-box” law. It applies to all employers in both the public and private sectors and is effective Jan. 1, 2017.
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Connecticut recently enacted the Fair Chance Employment Act that is a modified “ban-the-box” law. It applies to all employers in both the public and private sectors and is effective Jan. 1, 2017.
The law prohibits employers from inquiring about a prospective employee's prior arrests, criminal charges or convictions on an initial employment application, unless the employer is required to do so by an applicable state or federal law, or a security or fidelity bond, or an equivalent bond, is required for the position for which the prospective employee is seeking employment.
Unlike broader ban-the-box laws in some other jurisdictions, Connecticut's Fair Chance Employment Act does not prohibit employers from inquiring about a prospective employee's criminal history until the employer first makes a conditional offer of employment to the applicant.
The final version of Connecticut's law stops short of imposing such a requirement and, instead, prohibits employers only from inquiring about a prospective employee's criminal history in an initial employment application. Nothing in the Act prohibits employers from asking about an applicant's criminal history (subject to certain restrictions discussed later) during a subsequent interview or by sending supplemental application materials after an initial screening.
Additionally, the law does not provide a private right of action. Rather, the only recourse for a prospective employee who alleges a violation of the Act is to file a complaint with Connecticut's Department of Labor.
Connecticut employers still may not require an employee or prospective employee to disclose a prior arrest, criminal charge or conviction if the records of such arrest, charge or conviction have been erased and/or are subject to erasure under various Connecticut laws and regulations. Additionally, any form that contains any question concerning the criminal history of the job applicant must contain a notice, in clear and conspicuous language, that the applicant is not required to disclose the existence of any arrest, criminal charge or conviction where the records have been erased or are subject to erasure.
The Fair Chance Employment Act also establishes a “Fair Chance Employment Task Force” charged with studying issues, including, the employment opportunities available to individuals with criminal histories. The task force is required to submit a report on its findings and offer recommendations on further administrative or legislative action on or before Jan. 1, 2017. The taskforce must submit a second report, addressing the same issues, on or before Jan. 1, 2018.
More extensive ban-the-box laws in some of Connecticut's neighboring states may be instructive regarding potential future developments in this area of the law in Connecticut.
For example, in New York, an employer is required to make an individualized assessment of multiple factors before it can deny employment based on a prior criminal conviction. The relevant factors include, but are not limited to, the duties of the job being sought, the nature of the criminal conviction, the age of the applicant at the time of the conviction, the age of the applicant at the time of the job application and the applicant's evidence of rehabilitation.
What should employers do?
Employers need to review and tailor their job-application forms, interview procedures and hiring processes to comply with the laws of the jurisdictions applicable to them.
Under the new Connecticut law, such compliance requires the removal of any inquiry about criminal convictions from an initial employment application. Other states, such as New York, have adopted additional measures in an effort to discourage alleged discrimination in the job market against job applicants with criminal histories.
Similar protections may be on the horizon in Connecticut following recommendations from the Fair Chance Employment Task Force, and employers need to remain alert to changes in this area of the law.
Daniel Schwartz is a partner and James Leva an associate at law firm Day Pitney.
