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Meeting of July 26, 2011 – EEOC to Examine Arrest and Conviction Records as a Hiring Barrier

Written Testimony of Juan Cartagena
President and General Counsel
Latino Justice

State Arrest Inquiry Apply to Priv. ER? Conviction Inquiry Apply to Priv. ER? Notification Requirement Occupational Licenses
CT ER can not require prospective EE to disclose arrest that did not result in a conviction Conn. Gen. Stat. § 31-51i (b)(2011)

A state employer or a state agency may not use evidence that an applicant was arrested, but not convicted in an application for employment or license. Conn. Gen. Stat. §46a-80(d) (2011)		 YES

NO		 ER can not inquire about a prospective EE’s conviction history until they have been deemed otherwise qualified for the position. Conn.Gen. Stat. § 46a-80(b) (2011)

An EE may not be denied employment with the state solely because of a conviction. ER must consider (1) nature of the crime and its relationship to the job for which the person has applied; (2) information pertaining to the degree of rehabilitation of the convicted person; and (3) the time elapsed since the conviction or release Conn.Gen. Stat. § 46a-80(c) (2011)		 NO

NO		 Any rejection based on a criminal record must be in writing to applicant articulating the evidence presented and the reason Conn.Gen. Stat. § 46a-80(d) (2011) Applicant may not be denied a state occupational license, permit, certificate etc solely because of a conviction. State licensing agency must consider (1) nature of the crime and its relationship to the job for which the person has applied; (2) information pertaining to degree of rehabilitation of the convicted person; and (3) the time elapsed since the conviction or release, the state, Conn.Gen. Stat. § 46a-80(c) (2011)
DE No prohibition on arrest inquiries YES No prohibition on inquiring or considering a conviction record in employment decisions

However, expunged records will not be released to an ER. DE Code Title 11, §4376 (a) (West 2011)		 YES n/a n/a
D.C. No prohibition on arrest inquiry

However, an EE does not need to disclose sealed arrest to ER. They must disclose this to government employers and occupational licensing agencies though. D.C. Code §16-803(m) (2011)		 YES No prohibitions on inquiring or considering a conviction record in employment decisions

However, an EE does not need to disclose sealed conviction to ER. They must disclose this to government employers and occupational licensing agencies though. D.C. Code §16-803(m) (2011)		 YES n/a n/a
FL No prohibition against arrest inquiry: however, EE’s are not required to disclose sealed/ expunged arrests. (except in limited circumstances) Fla. Stat. §943.0585(4) (a)(2011) YES EE may not be denied state or municipal employment solely because of prior conviction, unless it was a felony or 1st degree misdemeanor and directly related to the position of employment sought. Fla. Stat. §112.011(1)(a) (2011) NO n/a Applicant may not be denied a occupational license because of a prior conviction unless crime was a felony or 1st degree misdemeanor that is directly related to the standards determined by the regulatory authority to be necessary and reasonably related to the protection of the public health, safety, and welfare Fla. Stat. §112.011(1)(b)(2011)
GA No prohibition on arrest inquiry: YES No prohibitions on inquiring or considering a conviction record in employment decisions YES n/a n/a
MA ER may not request any information regarding an arrest, detention, or disposition regarding any violation of law in which no conviction resulted- Mass. Gen. Law ch. 151B, § 4(9)(i) (2010) YES ER may not inquire about: (i) a first conviction for the misdemeanors of: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace, or (ii) a misdemeanor conviction where conviction or completion of incarceration occurred more than five years prior. Mass. Gen. Law ch. 151B, § 4(9)(ii)-(iii) (2010)

An employer may not request criminal offender record information on initial written application, unless federal or state law requires it to create a disqualification for the position - Mass. Gen. Law ch. 151B, § 4(9 1/2)(i)-(ii) (2010)		 YES n/a n/a
MD No prohibition on arrest inquiry:

However, ERs may not require disclosure of expunged information regarding criminal charges in an application, interview or by other means. Md. Code Ann. [Crim. Proc.] §10-109 (a)(1)(i) (West 2011)		 YES No prohibitions on inquiring or considering a conviction record in employment decisions

However, ERs may not require disclosure of expunged information regarding criminal charges in an application, interview or by other means. Md. Code Ann. [Crim. Proc.] §10-109 (a)(1)(i) (West 2011)		 YES n/a An agency. may not deny occupational license or certificate to an applicant solely because of a prior conviction, unless the department determines that: (1) there is a direct relationship between the applicant's previous conviction and the specific occupational license or certificate sought; OR
(2) the issuance of the license or certificate would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
MD con't An applicant need not disclose an expunged charge that did not result in a conviction. Md. Code Ann. [Crim. Proc.] §10-109 (a)(2)(1) (West 2011)

The refusal of an applicant to disclose an expunged charge cannot be the sole reason for his or her rejection from employment. Md. Code Ann. [Crim. Proc.] §10-109 (West 2011)		 YES The refusal of an applicant to disclose an expunged charge cannot be the sole reason for his or her rejection from employment. Md. Code Ann. [Crim. Proc.] §10-109(a)(3)(1) (West 2011) YES n/a In making the determination, the department shall consider:
(1) the policy of the State expressed in subsection (c) of this section;
(2) the specific duties and responsibilities required of a licensee or certificate holder;
(3) whether the applicant's previous conviction has any impact on the applicant's fitness or ability to perform the duties and responsibilities authorized by the license or certificate;
(4) the age of the applicant at the time of the conviction and the amount of time that has elapsed since the conviction;
(5) the seriousness of the offense for which the applicant was convicted;
(6) other information provided by the applicant or on the applicant's behalf with regard to the applicant's rehabilitation and good conduct; and
(7) the legitimate interest of the department in protecting property and the safety and welfare of specific individuals or the general public. Md. Code Ann. [Crim. Proc.] §1-209 (West 2011)
NJ No prohibitions onarrest inquiry: YES No prohibitions on inquiring or considering a conviction record in employment decisions YES ER must provide applicant with notice and an opportunity to confirm or deny accuracy of record. They also must have a reasonable period of time to correct or complete the record prior to final determination of the subject's eligibility for the position or license.(N.J. A.D.C 13:59-1.6(a)(2011)) An applicant can not be disqualified because of a conviction, except public employees convicted of offenses touching on their public offices or crimes relating adversely to the occupation for which the license is sought. Any disqualification based on a conviction must be in writing articulating how the factors relate to the license or business sought. These factors include: 1) nature and seriousness of the crime, 2) circumstances under which it was committed, 3) date of the crime, 4) age of the person at the time, 5) whether the crime was an isolated or repeated incident, 6) social conditions that may have contributed, and 7) any evidence of rehabilitation. The statute further provides that certain evidence of rehabilitation, if presented, should preclude a licensing authority from disqualifying an individual, including a certificate of rehabilitation from parole or probation. (N.J.S.A. § 2A:168A)
NY ERs may not inquire, in any manner, or act adversely upon someone in connection with employment or licensing:
  • who has been arrested for a crime not currently pending against that individual
  • Or where the proceeding has been terminated by a youthful offender adjudication
  • Or where the proceeding was terminated by a conviction for a violation that was sealed N.Y. Exec. Law § 296(16) (McKinney 2010)
 YES ER may not deny employment or act adversely upon an applicant because they have been convicted of one or more crimes, unless 1) there is a direct relationship between the offense and the employment sought or held or 2) granting employment would involve unreasonable risk to property or to the safety or welfare of specific individuals or the general public. N.Y. Correct. Law § 752 (McKinney 2007); N.Y. Exec. Law § 296 (15)(McKinney 2010) (making a violation Article 23 an unlawful discriminatory employment practice).

ER must consider:

a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.
c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities
d) The time which has elapsed since the occurrence of the criminal offense or offenses.
e) The age of the person at the time of occurrence of the criminal offense or offenses.
f) The seriousness of the offense or offenses.
g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.
N.Y. Correct. Law § 753(1) (McKinney 2011); N.Y. Exec. Law § 296 (15)(McKinney 2010)(making a violation of N.Y. Correct. Law § 752 an unlawful discriminatory employment practice).		 YES If an applicant is denied based on their conviction record, ER or licensing agency must, upon request, provide the applicant with a written statement setting forth the reasons for denial within thirty days. N.Y. Correct. Law § 754 (McKinney 2007) Licensing agency may not deny license because they were convicted of a crime, unless 1) there is a direct relationship between the offense and the specific license sought or held or 2) granting the license would involve unreasonable risk to property or to the safety or welfare of specific individuals or the general public. N.Y. Correct. Law § 752 (McKinney 2007) ER must consider:

a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.
c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
d) The time which has elapsed since the occurrence of the criminal offense or offenses.
e) The age of the person at the time of occurrence of the criminal offense or offenses.
f) The seriousness of the offense or offenses.
g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.
N.Y. Correct. Law § 753(1) (McKinney 2011) N.Y. Exec. Law §296(15)(McKinney 2010))(making a violation of N.Y. Correct. Law § 752 an unlawful discriminatory employment practice).
NC No prohibition on arrest inquires; but, the subject of an expunged record may legally refrain from responding to any inquiry regarding expunged entries related to arrest or trial. N.C.G.S.A. 15A-146 (2010) YES No prohibitions on inquiring or considering a conviction record in employment decisions YES n/a n/a
PA No prohibition on arrest inquiry; however, 18 Pa.C.S.A. § 9125(b) (2011) has been construed to prohibit ERs from using this information when making an employment decision YES Felony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the applicant's suitability for employment in the position for which he has applied. 18 Pa.C.S.A. § 9125 (b) (2011) YES ER shall notify in writing if their decision not to hire is based in whole or in part on criminal history record. 18 Pa.C.S.A § 9125(c) (2011) Occupational licensing agencies may consider convictions, but may not deny a license based solely on the applicants conviction record unless it is a felony or a job-related misdemeanor convictions Pa. Cons. Stat. Ann. §9124 (a)-(c)(2011)
RI Except law enforcement, an ER may not inquire if applicant has been arrested. R.I. Gen. Laws. § 28-5-7(7)(2010) YES The Human Rights Law specifically reserves the right for employers to inquire about conviction. R.I. Gen. Laws. § 28-5-7(7)(2010) YES n/a n/a
SC No prohibition on arrest inquiry: YES No prohibitions on inquiring or considering a conviction record in employment decisions YES n/a n/a
VA No prohibition on an arrest inquiry: but, an ER shall not require applicant for employment to disclose information of any arrest or criminal charge against him that has been expunged - VA. Code Ann. §19.2-392.4 (A) (2011) YES No prohibitions on inquiring or considering a conviction record in employment decisions.

ER shall not require applicant for employment to disclose information concerning any arrest or criminal charge against him that has been expunged - VA. Code Ann. §19.2-392.4 (A) (2011)		 YES n/a Person shall not be refused license, occupational/professional certificate “solely because of” a prior criminal conviction, unless the criminal conviction “directly relates” to the occupation or profession for which the license, certificate or registration is sought.- Va. Code Ann. § 54.1-204 (A) (2011) The licensing board must consider: 1. nature and seriousness of crime;
2. The relationship of the crime to the purpose for requiring a license to engage in the occupation;
3. The extent to which the occupation might offer an opportunity to engage in further criminal activity of the same type as that in which the person had been involved;
4. The relationship of the crime to the ability, capacity or fitness required to perform the duties and discharge the responsibilities of the occupation or profession;
5. extent/ nature of the person's past criminal activity;
6. The age of the person at the time of the crime;
7. The amount of time that has elapsed since the person's last involvement in the commission of a crime;
8. The conduct and work activity of the person prior to and following the criminal activity; and
9. Evidence of the person's rehabilitation or rehabilitative effort while incarcerated or following release.
Va. Code Ann. § 54.1-204 (B) (2011) Table 4: State by State Guide to Laws Regulating Arrest & Conviction Inquiries for Employment, for Selected States 7/19/2011 YES