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New Maine Law Restricts an Employer’s Ability to Inquire into a Job Applicant’s Criminal History
IN BRIEF
On July 6, 2021, Governor Janet Mills signed into law LD 1167, “An Act Relating to Fair Chance in Employment.”
This law follows the passage of other similar laws around the nation in recent years designed to have employers consider a job candidate’s qualification without consideration of the candidate’s past conviction or arrest record.
What Does the New Law Do?
This new law enacts two general prohibitions (subject to certain exceptions) relating to the initial hiring phase, job applications/advertisements and “criminal history record information,” which is defined as:
“Information of record collected by a criminal justice agency or at the direction of a criminal justice agency or kept in the custody of a criminal justice agency that connects a specific, identifiable person, including a juvenile treated by statute as an adult for criminal prosecution purposes, with formal involvement in the criminal justice system either as an accused or as a convicted criminal offender.”
The new definition of “Criminal History Record Information” includes, but is not limited to:
- Summonses and arrests
- Detention
- Bail
- Formal criminal charges such as complaints, informations and indictments
- Any disposition stemming from such charges
- Post-plea or post-adjudication sentencing
The two primary prohibitions arising under the new law are:
- First, employers may not request criminal history record information on their initial application form.
- Second, employers may not state on their employee application form or advertisement or otherwise assert that a person with a criminal history may not apply or will not be considered for a position.
The law also provides that if an employer does inquire about a prospective applicant’s criminal history record information during the application process, the applicant, if still eligible for the position, must be given the opportunity to explain the circumstances and backgrounds of any convictions.
Are there Exceptions?
Yes. Both of these prohibitions are subject to two exceptions. Specifically, employers may inquire about criminal convictions on an initial employee application form or state on an initial application form or advertisement or otherwise assert that a person with a criminal history may not apply or will not be considered for a position if:
- The applicant is applying for a position for which a federal/state law or regulation or rule creates a mandatory or presumptive disqualification based on a conviction for one or more types of criminal offenses and the questions on the initial employee application form conform to those types of criminal offenses that are disqualifying; or
The employer is required by federal or state law or regulation or rule to conduct a criminal history record check for the position for which the prospective employee is applying and the questions on the initial employee application form are limited to the types of criminal offenses creating the obligation.
When Does the New Law Take Effect?
This new law will become effective on October 18, 2021.
Bottom Line
Given the fact-specific nature of these matters, employers should consult with legal counsel to consider next steps and evaluate any modifications they need to make to their standard application forms and process to ensure compliance.
To learn more, visit our Labor and Employment Practice Group webpage or contact us with questions here.
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