California

Frequently Asked Questions ("FAQs") for California's Fair Chance Act were recently released by the California Department of Fair Employment and Housing ("DFEH"). These FAQ offer guidance on the Fair Chance Act and address how the law works, employers subject to the law, and requirements to follow when employers elect to inquire about an applicant's criminal history.

The DFEH Council also amended regulations pertaining to criminal background checks and the hiring process. Effective October 1, 2020, the requirements of the Fair Chance Act will be incorporated into existing regulations to address consideration of criminal history in employment decisions. Amended regulations expand the definition of "applicant" to include individuals who begin working under conditional employment terms while the employer conducts a post-offer assessment of the individual's criminal history.

Additionally, the scope of the Fair Chance Act was expanded, requiring labor contractors and union hiring halls to comply with established regulations in choosing workers for pool or availability lists. Regulations also state that employers may be subject to additional requirements local ordinances may impose.

Hawaii

Shortening the lookback period, Hawaii amended the original "ban the box" law to even further limit the prior period of time employers can inquire into and consider conviction records. This timeframe was reduced from 10 years to seven years for felony convictions and five years for misdemeanor convictions, excluding periods of incarceration. These changes were enacted to support the reduction of "unnecessary employment discrimination against individuals with old and relatively minor conviction records, in furtherance of economic self-sufficiency, and to reduce crime and recidivism rates." Hawaii SB 2193 took effect September 15, 2020.

St. Louis, Missouri

Beginning January 1, 2021, employers in St. Louis maintaining 10 individuals or more will be prohibited from:

• Utilizing an applicant's criminal history or related sentence to arrive at a hiring or promotion decision. Exceptions may apply if the employer can demonstrate that the decision is reasonably related to the duties and responsibilities of the position and was determined based on all relevant, reasonably available information including the frequency, currency and severity of the criminal history.
• Advertising positions that exclude applicants based on criminal history and/or incorporating exclusionary language in job applications and other hiring process-related forms.
• Inquiring about or requiring the disclosure of an applicant's criminal history on initial applications and related forms.
• Seeking criminal history information on an applicant via publicly available means.

An employer may inquire into an applicant's criminal history after the employer has interviewed the applicant and determined that the applicant is otherwise qualified for the position. Additionally, the employer can only make this inquiry provided that all applicants in the post-interview selection pool are also questioned regarding their criminal history.

Takeaway for Employers

Employers are encouraged to review amended state and municipality "ban the box" legislation and determine if adjustments are required regarding internal workflows and protocols. Certiphi Screening suggests that clients consult with their account management teams regarding any questions pertaining to changes in "ban the box" legislation.

Posted: October 19, 2020