Legislative Sessions Heating Up: Fair Chance Laws Remain Focus

While it may be hard to believe February is already upon us, state legislatures have been actively tackling several key issues. One consistently popular topic? Fair chance laws.

Over the years, fair chance laws have become an increasingly bipartisan issue. For example, in Ohio, Democrat Senator Hearcel F. Craig teamed up with Republican Senator Louis W. Blessing, III to introduce SB 143, titled “Prohibit employment application question re: criminal background”.

As currently drafted, SB 143 would prevent employers, who have five or more employees, from including a criminal history question on initial employment applications. The bill would also prevent employers from inquiring or considering the criminal background of an applicant at the initial employment application stage. SB 143 includes individualized assessment requirements, along with specific pre-adverse and final adverse action notification obligations. While this bill is not as restrictive as those in California or New York City, it would be a significant change for Ohio employers.

Employers in Kentucky should keep an eye on HB 123. As introduced, this legislation more closely aligns with a traditional ban the box bill versus the expansive fair chance laws. Employers would be prohibited from considering or requiring disclosure of criminal history information until after the applicant is selected for an interview, or, if there is no interview, after a conditional offer of employment. There are several exemptions currently built into the bill.

Oklahoma employers need to track SB 1498. Similar to Kentucky HB 123, SB 1498 is rather narrow in scope. As drafted, the bill would apply to all employers in the state with at least one employee. The bill would prohibit employers from obtaining or asking an applicant about criminal history information until after extending a conditional offer. The bill would allow employers, pre-offer, to notify applicants of any criminal convictions under federal, state or local law that may disqualify them from the position.

New York S 5297 was introduced with a Democrat and Republican co-sponsor. S 5297 would make it an unlawful discriminatory practice to inquire into, or act adversely upon, any criminal conviction information until after a conditional offer. What makes this bill potentially more concerning than others, is the language that a conditional offer may only be withdrawn on the basis of a criminal conviction in accordance with New York Article 23-A. This language could potentially be interpreted to require a bifurcated screening process akin to New York City’s Fair Chance Act, which is a logistical and procedural headache for employers. New York employers should track this closely, and may want to consider contacting the co-sponsors to ensure that is not the intent of S 5297 as currently drafted.

Employers can also expect more fair chance laws, or similar legislation, on the local level. We saw a flurry of activity last year at the city and county level enacting fair chance and antidiscrimination ordinances. Often these come without notice or time to respond, so it’s important for employers to remain vigilant in the jurisdictions where employees live and/or work.