The 2019 legislative season continues to produce legislation impacting employers particularly with respect to how they may treat criminal history information. In addition, we continue to see an emphasis on enforcement of existing laws in particular jurisdictions.
Employers with 11 or more employees must be in compliance with the law effective September 1, 2019, while all other employers must be in compliance with the law effective September 1, 2021.
Under the law, employers with 15 or more full-time employees may not require a candidate to disclose their criminal history at any time before the first in-person interview. During the first in-person interview, employers may require disclosure of that information. There are limited exemptions to the law including employers that are required to take action under another applicable federal or state law.
Notably, the law expressly states it does not preempt local jurisdictions from enacting or enforcing laws that are more restrictive. This means employers must comply with the statewide standard, in addition to current laws in Baltimore (City), Prince George’s County and Montgomery County.
The New York City Commission on Human Rights (NYCCHR) continues to be an active enforcer as well. In March, the NYCCHR announced a significant settlement - $196,624 in damages. In this case, the employer re-screened an employee following an acquisition and uncovered a felony conviction from the early 1990s. The company refused to re-hire the individual on the basis of this conviction. Following an investigation, the NYCCHR’s Law Enforcement Bureau determined the employer failed to consider the Article 23-A factors under New York State Corrections Law. In addition to the monetary payment, the employer also developed a comprehensive Fair Chance Act policy, made postings at its NYC locations of rights individuals have under the law, and provided training to relevant HR and management employees.
Employers need to take time and review new legislation in addition to their compliance with existing laws. The landscape continues to become more difficult for employers that hire in multiple jurisdictions, but as the NYC case demonstrates, non-compliance can be costly.
New Ban the Box Laws
Colorado
Colorado passed HB 19-1025 limiting an employer’s inquiry into a candidate’s criminal history. Colorado’s Governor Jared Polis is expected to sign. Under the legislation, employers may not:
- State in job advertisements that persons with a criminal history may not apply;
- State on any form of employment application, including electronic applications, that persons with criminal history may not apply; or
- Inquire into or require disclosure of an individual’s criminal history on an initial written or electronic employment application.
Employers with 11 or more employees must be in compliance with the law effective September 1, 2019, while all other employers must be in compliance with the law effective September 1, 2021.
Maryland
On the eve of their last day in session until 2020, the Maryland state legislature pushed through HB994 – “Criminal Record Screening Practices (Ban the Box)”. Maryland’s Governor Larry Hogan is expected to sign the legislation. Once enacted, the law will go into effect on January 1, 2020.Under the law, employers with 15 or more full-time employees may not require a candidate to disclose their criminal history at any time before the first in-person interview. During the first in-person interview, employers may require disclosure of that information. There are limited exemptions to the law including employers that are required to take action under another applicable federal or state law.
Notably, the law expressly states it does not preempt local jurisdictions from enacting or enforcing laws that are more restrictive. This means employers must comply with the statewide standard, in addition to current laws in Baltimore (City), Prince George’s County and Montgomery County.
Ongoing Enforcement
Jurisdictions with long-standing ban the box laws continue to tout enforcement. On May 6, 2019, Massachusetts Attorney General Maura Healey announced agreements were reached with two Massachusetts employers, with warning letters sent to another 17 businesses, after finding them to be in violation with the state’s ban the box law. In all of these instances, the businesses still included a criminal history question on the initial employment application. The agreements reached with the two businesses required a $5,000 payment to the state.The New York City Commission on Human Rights (NYCCHR) continues to be an active enforcer as well. In March, the NYCCHR announced a significant settlement - $196,624 in damages. In this case, the employer re-screened an employee following an acquisition and uncovered a felony conviction from the early 1990s. The company refused to re-hire the individual on the basis of this conviction. Following an investigation, the NYCCHR’s Law Enforcement Bureau determined the employer failed to consider the Article 23-A factors under New York State Corrections Law. In addition to the monetary payment, the employer also developed a comprehensive Fair Chance Act policy, made postings at its NYC locations of rights individuals have under the law, and provided training to relevant HR and management employees.
Employers need to take time and review new legislation in addition to their compliance with existing laws. The landscape continues to become more difficult for employers that hire in multiple jurisdictions, but as the NYC case demonstrates, non-compliance can be costly.