July is the New January: Compliance Considerations for Midyear Legislation (Part 1)

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Compliance Considerations for Midyear Legislation

Come the second half of the year, most state legislatures have already adjourned, making it an apt time to reflect on what changes have taken place. We like to say that July is the new January, given the number of laws that become effective during the month.

As we look at recently passed and soon-to-be-effective laws from this past legislative season, it’s important for employers to revisit the policies that shape their hiring and background screening practices. Depending on the states in which you’re hiring, there may be some significant changes coming your way.

This legislative session saw a number of changes related to the second-chance or fair-chance hiring movement, which aims to create more job opportunities for individuals who may have historically lost out due to criminal history. In the first part of our midyear legislative update, we’ll take a look at these laws and what they mean for hiring managers.

“Ban the Box”

Ban-the-box legislation aims to either prevent or delay employers from inquiring into a candidate’s criminal history. In some jurisdictions, the laws include special notice requirements and limits on the types of criminal information that employers can consider when making their suitability decisions.

It is important to note that not all ban-the-box laws are created equal. Generally, they prevent employers from requesting a criminal background check or asking candidates during the initial application if they’ve ever been convicted of a crime, but beyond that, significant differences exist between laws. A one-size-fits-all approach may be difficult, if not impossible, to craft for multiple jurisdictions, so it’s important to pay close attention to the distinctions between the locations you’re hiring in.

To better understand how these laws can vary, here’s a look at some of the key differences among recent jurisdictions adopting this type of legislation:

  • Colorado: The Colorado Chance to Compete Act is being implemented in tiers. Right now, it is applicable only to Colorado employers with 11 or more employees, but in 2021 it will apply to all employers in the state. Also noteworthy about this legislation: Although an employer cannot directly ask an applicant about their criminal history until after an initial application, they are still able to verify criminal history via public records housed in the statewide database.
  • New Mexico: Their ban-the-box measure, which went into effect on June 14, adheres to the standard language. But significant, this legislation includes an express requirement for the employer to have a discussion with the candidate if they want to inquire into their criminal history.
  • Westchester, NY: Passed in 2018 but not effective until March 2019, this law allows employers in the county to inquire into criminal history after an initial employment application. Although New York state does not have ban-the-box legislation in place, it does require employers to complete an Article 23-A analysis when assessing a candidate’s criminal history, which employers are then required to provide to the candidate upon request. The individual assessment looks at the candidate’s criminal history alongside any evidence of rehabilitation or reform, such as having good professional references or holding jobs similar to the one being applied for.

Clean Slate Legislation

“Clean slate” legislation is another area of employment law that works to reduce the barrier to entry for those with criminal histories. Expungement, the process for sealing arrest and conviction records, exists across the country — for some time now in some jurisdictions — but many ex-offenders don’t pursue it because they are unsure of how to proceed.

Some states have passed legislation to simplify the process and implement protections for job candidates. Recent measures include:

  • Nevada: Assembly Bill 192 (AB 192) establishes a process by which individuals can petition to have their criminal records sealed if their conviction was for an offense that was later decriminalized. The legislation also streamlines expungement by providing individuals with a simple form to submit to the court.
  • Vermont: The state passed a similar measure to that of Nevada, however, the scope of offenses that have been decriminalized in Vermont is far greater. For example, convictions for offenses involving small amounts of narcotics (in addition to those for marijuana) are eligible for expungement, as are those for DUIs and nonviolent burglaries.
  • West Virginia: The state provides a process for expungement for most nonviolent convictions, but the time period that an individual must wait before eligibility begins one to five years after they have finished serving their jail or prison sentence or any term of probation or parole (whichever is later), depending on whether they were convicted of a misdemeanor, multiple misdemeanors or a felony.

So, what’s the overall takeaway for employers’ background screening programs? With an expunged record, a candidate could lawfully answer no to a question on whether they’ve ever been convicted of certain offenses. With this in mind, you may want to rethink your criminal disclosure questions. If you use HireRight’s Applicant Center, our self-reporting service for job applicants, you might consider revising your questions to specifically exclude charges that have been expunged or decriminalized.

Compliance with ban-the-box and clean slate legislation may be the law, but it’s important for employers to remember why it’s being introduced in the first place: to create a second chance for individuals who have struggled to find employment opportunities due to past convictions. While it’s critical to balance legal requirements with the unique requirements of each open position, opening the door to applicants with criminal records could offer new beginnings to many individuals and a whole new candidate pool for your organization.

Alonzo Martinez

Alonzo Martinez

Alonzo Martinez is Associate Counsel, Compliance at HireRight. Mr. Martinez is responsible for monitoring and advising on key legislative and regulatory developments globally affecting HireRight’s service delivery. His work is focused on ensuring HireRight’s performance as a consumer reporting agency and data processor complies with relevant legal, regulatory, and data furnisher requirements. Mr. Martinez obtained his Juris Doctorate from the University of Colorado, and is licensed by the Supreme Court of the State of Colorado. He is a member of the Colorado Bar Association Employment Law Division, the Association of Corporate Counsel, and the Professional Background Screening Association.

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