36 states have laws for public employers, 15 states regulate private employers (California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington - and the District of Columbia). Here is an overview of the most recent laws and updates employers should know about by state.
Alabama
Alabama passed into law the Record Expungement Designed to Enhance Employment and Eliminate Recidivism Act (REDEEMER Act).
Overview:
Key takeaways for employers:
- Misdemeanors and certain nonviolent felonies are eligible to be expunged.
- Qualified individuals to petition the court for expungement.
- Judges to analyze factors to make decisions.
- Expunged records are generally not available to employers.
Waterloo, IA
Effective July 1, 2020, the City ordinance amended the City of Waterloo of Ordinances by adding a new Title 5, Police Regulations, Chapter 3, Human Rights, Section 15, Unfair Use of Criminal Record in Hiring Decisions.
Overview:
Key takeaways for employers:
- Employers may not require applicants to disclose arrests, convictions, or pending charges during the application process including, but not limited to the interview.
Recent update
- In 2020. the Iowa Association of Business and Industry (ABI) filed a lawsuit against the City of Waterloo. They argued that the ordinance is contrary to state law which states:
- “City shall not adopt any ordinance…providing for any terms or conditions of employment that exceed or conflict with the requirements of federal or state law relating to…hiring practices…or other terms or conditions of employment”.
- Affirmed the ordinance’s regulation that businesses with more than 15 employees cannot ask about job applicants’ criminal histories until they extend a conditional job offer.
- Nullified the section of the ordinance that prohibits businesses from making decisions solely based on an applicants’ criminal record.
Louisiana
On June 16, 202, HB707 was passed and signed by the Governor.
Overview
- Location: Louisiana
- Legislation: HB 707
- Effective: August 1, 2021
- Applies to: Employers with 20 or more employees in the state.
Key takeaways for employers:
- Employers may not consider arrest records/charges that did not result in a conviction.
- For other criminal history records, employers must complete an individual assessment of whether criminal history has a direct and adverse relationship with the specific duties of the job. They must consider:
- The nature and gravity of the offense.
- The time that has elapsed sing the offense, conduct, or conviction.
- The nature of the job sought.
- Applicants have the right to make a written request and employers must make available to the applicant, “any background check information used during the hiring process”
- Broader than federal pre-adverse action notices requirement.
Maine
On July 6, 2021, Governor Mills signed "Legislative Document (LD) 1167 (HP 845)", a Ban-The-Box legislation.
Overview
- Location: Maine
- Legislation: HB 845
- Effective: October 18, 2021
- Applies to: Private employers.
Key takeaways for employers:
- Employers may not request criminal history information on the initial job application or at any time prior to determining that applicant(s) are otherwise qualified for the job.
- Employers may not include any information in the job posting or advertisement that applicants with a criminal history may not apply or will not be considered for the position.
- Exceptions for state or federal laws, regulations, or mandates that a criminal conviction disqualifies an applicant for a position.
New York City, NY
December 10, 2020, the New York City Council passed bill 1314-A, "Prohibiting discrimination based on one’s arrest record, pending criminal accusations or criminal convictions". The bill expands the scope of the Fair Chance Act (FCA).
Overview
- Location: New York City, NY
- Legislation: 1314-A
- Effective: July 29, 2021
- Applies to: All employers with at least 4 employees nationwide, at least one of them working in NYC.
Key takeaways for employers:
- Among other things, the amendments:
- Expanded employment protections for individuals with certain criminal histories by adding to the list of information that employers are prohibited from considering.
- Added additional steps and procedures that employers must take when presented with certain criminal information and.
- Clarified certain timing, as well as other obligations and requirements, that are part of the Fair Chance Process.
- The NYC Commission on Human Rights provided additional guidance for employers. Among other things, the Guidance makes clear that the Commission believes that employers:
- Should conduct two separate screenings: everything other than criminal checks and driving (like education, employment, professional licenses, drug tests, and government list checks), and then criminal and driving checks.
- That “everything other than criminal and driving” should be done before a conditional offer of employment.
Salary History Ban
Nevada
SB 293 was passed and signed by Governor Sisolak on June 2, 2021.
Overview
- Location: Nevada
- Legislation: SB 293
- Effective: October 1, 2021
- Applies to: Public and private employers as well as employment agencies.
Key takeaways for employers:
- Employers may not seek the salary history of an applicant for employment, rely on salary history to determine whether to offer employment or rate of pay or discriminate in the form of refusing to interview, hire or promote based on refusing to provide salary history.
- No exception for relying on salary history voluntarily disclosed.
Access to information
Michigan
The State of Michigan announced a new rule that may limit or remove access to the Date of Birth on criminal records.
Overview
- Location: Michigan
- Legislation: ADM File No. 2020-26
- Effective: Was 7/1/2021, now postponed until 01/01/2022
The updates are to Rule 1.109, paragraph 10, subparagraph (a), which states:
"…The clerk of the court is required to redact protected personal identifying information before providing direct access to the document via the internet, such as through the court’s website."
And to Rule 8.119, paragraph (H):
"…If a public document prepared or issued by the court contains protected personal identifying information, the information must be redacted before it can be provided to the public, whether the document is provided via a paper or electronic copy, direct access via a publicly accessible computer at the courthouse, or direct access via the internet, such as on the court’s website…"
Impact for Employers:
- Currently, an applicant's Date of Birth (DOB), full name (including middle initial), and address are used to confirm records. The new law will redact the Date of Birth and potentially other personally identifiable information (PII) on court records at the county level.
- There may be delayed turnaround times when a potential record is identified.
The Professional Background Screeners Association (PBSA) is working tirelessly on a campaign to alter the language in the changes to maintain the date of birth information on court records. To learn more about this campaign, please follow this link.
California
The California Court of Appeal recently ruled in "All of Us or None of Us v Hamrick", that an individual’s date of birth and driver's license cannot be used as data identifying a criminal defendant in public records.
Overview
Impact for Employers:
- Court Rule 2.503(b) requires that trial courts that maintain an electronic index must provide remote electronic access to “indexes of all cases” to the extent feasible, and must exclude specific information (including DOB and DL) from such databases.
- Clerk confirmation of DOB on possible matches extends turnaround time.
- Current Impact: Some CA District courts have been removing the ability to include DOB as a search identifier on their online portals.
The PBSA submitted an amicus letter asking the California Supreme Court to address this order and ruling on July 15, 2021.
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