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December 21, 2015 Experts Corner

CT employers must be aware of ban-the-box hiring rules

Dove A. E. Burns
By Dove A. E. Burns

Connecticut employers face a variety of regulations prohibiting them from making inquiries into criminal history at different points throughout the hiring process. Not only is there a myriad of state regulations — there are also prohibitions based upon the city in which an employer operates.

All legislation curtailing employers' pre-employment inquiries have made it more difficult for Connecticut employers to walk that fine line between avoiding discrimination against applicants and looking out for their company's best interests. While the Connecticut electorate seems eager to overlook criminal history as evidenced by the recent re-election of ex-convict Joseph Ganim as mayor of Bridgeport, employers need to be educated as to the regulations that prohibit pre-employment inquiries.

The state of Connecticut adopted legislation preventing public employers from inquiring about criminal history at the outset of the application process. Connecticut is currently one of 19 states that have adopted “ban-the-box” legislation designed to offer further employment opportunities to ex-convicts, who make up almost a third of the U.S. population.

Behind this push is data collected by the Equal Employment Opportunity Commission (EEOC) noting that 92 percent of employers subjected all or some of their job applicants to criminal background checks, along with research affirming that a criminal record reduces the likelihood of a job callback or offer by nearly 50 percent.

Accordingly, the goal of Connecticut's ban-the-box law is to require that employers allow ex-offenders and convicted criminals to display their credentials prior to having to reveal their criminal history, thereby banning a box on the application requiring applicants to provide information on criminal history.

Employers constantly face the challenge of competing interests and obligations. This situation highlights one of the more pressing: the apparent conflict between applicants' rights to be free from discrimination resulting from criminal background or credit checks and an employer's obligation to protect its business and keep its employees and clients safe.

The National Institute for Occupational Safety and Health reports that, on average, 1.7 million workers are injured each year as a result of workplace violence, and the National Center for Victims of Crime reported that one of six violent crimes experienced by U.S. residents occur at work.

At the same time, however — and despite the role of criminal background checks in trying to prevent such occurrences — the EEOC has taken the position for the last 40 years that the blanket use of criminal history to screen jobseekers creates a disparate impact on minority applicants and thus violates Title VII of the Civil Rights Act of 1964. The disparate impact model does not require that an employer had any intent to discriminate for liability to attach, making these matters difficult to defend.

While it is commonly understood in Connecticut that public employers are prohibited from seeking criminal history on application materials, many employers are not aware that there are municipal restrictions that apply to some Connecticut employers. Hartford private employers are specifically prohibited from performing background checks prior to a conditional offer of employment. Hartford allows for the applicant to appeal any detrimental information that is discovered in the background check process.

All Connecticut employers seeking information about an applicant's criminal record must, at a minimum, provide clear and conspicuous notice that the applicant is not required to disclose arrests, charges or convictions for which the records have been erased. The notice must define criminal records that are subject to erasure and inform the applicant that erased records will be treated as if the underlying action never occurred. Employers are required to keep criminal history information confidential and confine disclosure to the human resources or decision makers with hiring authority.

Tip for Employers

1. Know your city and county laws. The EEOC is actively investigating in this area and is looking to bring lawsuits. Therefore, employers need to keep abreast of this issue and be aware of how future developments can affect their policies and procedures.

2. Eliminate blanket policies and evaluate each applicant individually. Consider factors such as the nature of the job the applicant is seeking, the amount of time that has passed since the offense, and the nature and gravity of the offense.

3. Some industries require employers to obtain criminal conviction histories: health care, education, security and policing are a few. Ensure that you are compliant with state and local laws compelling background checks.

4. Do not reject applicants absent a conviction, as arrests are not proof of criminal conduct.

5. Give applicants an opportunity to explain their criminal records before they are rejected.

6. Be prepared to explain what factors you considered and why you reached the decision you did — regardless of the decision you make.

Dove A. E. Burns is a partner at the law firm Goldberg Segalla in Hartford and New York.

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