Hartford Business Journal

10 Hartford Business Journal • July 11, 2016 www.HartfordBusiness.com EXPERTS CORNER CT readies for modified 'ban-the-box' law By Daniel Schwartz and James Leva C onnecticut recently enacted the Fair Chance Employment Act that is a modi- fied "ban-the-box" law. It applies to all employers in both the public and pri- vate sectors and is effective Jan. 1, 2017. The law prohib- its employers from inquiring about a pro- spective employee's prior arrests, crimi- nal charges or con- victions on an initial employment appli- cation, unless the employer is required to do so by an applicable state or federal law, or a security or fidelity bond, or an equivalent bond, is required for the posi- tion for which the prospective employee is seek- ing employment. Unlike broader ban-the-box laws in some other jurisdictions, Connecticut's Fair Chance Employment Act does not prohibit employers from inquiring about a prospec- tive employee's criminal history until the employer first makes a conditional offer of employment to the applicant. The final version of Connecticut's law stops short of imposing such a requirement and, instead, prohibits employers only from inquiring about a prospective employee's crim- inal history in an initial employment applica- tion. Nothing in the Act prohibits employers from asking about an applicant's criminal his- tory (subject to certain restrictions discussed later) during a subse- quent interview or by sending supplemental application materi- als after an initial screening. Additionally, the law does not pro- vide a private right of action. Rather, the only recourse for a prospective employee who alleges a viola- tion of the Act is to file a complaint with Con- necticut's Department of Labor. Connecticut employers still may not require an employee or prospective employee to dis- close a prior arrest, criminal charge or con- viction if the records of such arrest, charge or conviction have been erased and/or are subject to erasure under various Connecticut laws and regulations. Additionally, any form that con- tains any question concerning the criminal his- tory of the job applicant must contain a notice, in clear and conspicuous language, that the applicant is not required to disclose the exis- tence of any arrest, criminal charge or convic- tion where the records have been erased or are subject to erasure. The Fair Chance Employment Act also establishes a "Fair Chance Employment Task Force" charged with studying issues, including, the employ- ment opportunities available to individu- als with criminal his- tories. The task force is required to submit a report on its find- ings and offer recom- mendations on fur- ther administrative or legislative action on or before Jan. 1, 2017. The taskforce must submit a second report, addressing the same issues, on or before Jan. 1, 2018. More extensive ban-the-box laws in some of Connecticut's neighboring states may be instructive regarding potential future develop- ments in this area of the law in Connecticut. For example, in New York, an employer is required to make an individualized assess- ment of multiple factors before it can deny employment based on a prior criminal convic- tion. The relevant factors include, but are not limited to, the duties of the job being sought, the nature of the criminal conviction, the age of the applicant at the time of the conviction, the age of the applicant at the time of the job application and the applicant's evidence of rehabilitation. What should employers do? Employers need to review and tailor their job-application forms, interview pro- cedures and hiring processes to comply with the laws of the jurisdictions appli- cable to them. Under the new Connecticut law, such compliance requires the removal of any inquiry about criminal convic- tions from an initial employment application. Other states, such as New York, have adopted additional measures in an effort to discour- age alleged discrimination in the job market against job applicants with criminal histories. Similar protections may be on the horizon in Connecticut following recommendations from the Fair Chance Employment Task Force, and employers need to remain alert to changes in this area of the law. n Daniel Schwartz is a partner and James Leva an associate at law firm Day Pitney. James Leva Daniel Schwartz ▶ ▶ Nothing in the Act prohibits employers from asking about an applicant's criminal history … during a subsequent interview or by sending supplemental application materials after an initial screening. • $0 Franchise Fee ($25,000 savings) • Set of Middleby Marshall Ovens • REDUCED ROYALTIES for first 4 years of operation • Up to $3,000 FOOD CREDIT BECOME A FRANCHISEE AND RECEIVE THESE INCENTIVES:* *Certain restrictions apply. All benefits, discounts and payments subject to Papa John's 2016 US Development Incentive Program. 180327 Call Caitlin Clines at (502) 261-4844 for more information or visit papajohns.com

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