On January 1, 2017, Connecticut will “ban the box” for private employers, as well as public employers.  “Ban the box” laws prohibit employers from asking questions about criminal background on employment applications, with some exceptions.  Such laws are becoming increasingly common in states and municipalities throughout the United States.

The new Connecticut legislation, known as Public Act 16-83, An Act Concerning Fair Chance Employment, defines “employer” as “any person engaged in business who has one or more employees, including the state or any political subdivision of the state.”  The law prohibits employers from inquiring about a prospective employee’s prior arrests, criminal charges, or convictions on an initial employment application.  There is an exception when the employer is required to do so by state or federal law.  However, it is not clear whether this exception will apply only when the employer is bound to inquire about criminal background on an initial application or if it will apply as long as the employer is required to ask at some point in the process.  A literal reading of the language implies the former.  There is also an exception when a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment.

Notably, the legislation only bans employers from asking about criminal history on an initial employment application.  It does not prohibit asking altogether, nor does it require a conditional offer prior to asking.  Therefore, employers need to check their application forms to ensure they do not ask about criminal background (unless an exception applies), but may ask such questions at any later point in the application process.

Existing state law requires that an employment application form that contains any question concerning the criminal history of the applicant contain a notice, in clear and conspicuous language:

(1) That the applicant is not required to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased pursuant to section 46b-146, 54-76o or 54-142a,

(2) that criminal records subject to erasure pursuant to section 46b-146, 54-76o or 54-142a are records pertaining to a finding of delinquency or that a child was a member of a family with service needs, an adjudication as a youthful offender, a criminal charge that has been dismissed or nolled, a criminal charge for which the person has been found not guilty or a conviction for which the person received an absolute pardon, and

(3) that any person whose criminal records have been erased pursuant to section 46b-146, 54-76o or 54-142a shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.

Further, employers may not reject an applicant or terminate an employee based on erased records or because of a prior conviction for which the individual has received a provisional pardon or certificate of rehabilitation pursuant to Conn. Gen. Stat. § 54-130a, or a certificate of rehabilitation pursuant to Conn. Gen. Stat. § 54-108f.

While the ban-the-box legislation does not allow an individual to sue an employer, a complaint may be filed with the state Department of Labor.

Employers should remain aware of other considerations relating to the role of prior convictions in the application process.  Employers in certain regulated industries, particularly where employees will work with children or finances, may have special requirements to inquire about criminal background.  Employers in all fields should ensure that they make carefully reasoned decisions about the relevance of prior convictions to the employment sought; failure to do so could give rise to discrimination charges based on race and national origin, even where a policy is applied evenhandedly.  Finally, before conducting a criminal background check, employers should ensure they are complying with notification requirements of the federal Fair Credit Reporting Act.

Due to the complexity of the law in this area, employers should consider having their applications and other onboarding materials reviewed by a labor and employment attorney.  Further, before taking adverse action (including refusing to hire an individual) based on a criminal conviction, it is advisable to seek counsel, as certain enumerated factors should be considered and documented.

Our team of labor and employment attorneys can assist employers in adjusting to the new criminal background inquiry restrictions and ensuring compliance with all applicable labor and employment laws.