Coming Soon: New Criminal Background Check Rules
The following article was provided by Berchem Moses PC. It is posted here with permission.
Beginning Jan. 1, 2023, public and private employers in Connecticut must comply with new rules regarding the use of criminal background information.
Employers were already prohibited from seeking information regarding criminal history that was erased, including where an individual was granted youthful status.
The new law broadens the definition of “erased criminal history record information” to refer to any erased records, information relating to persons granted youthful offender status, and continuances of a criminal case that are more than thirteen months old.
Employers also may not deny employment to a prospective employee or discriminate against a current employee based solely on “erased criminal history record information” or based on prior convictions for which the individual received a provisional pardon or certificate of rehabilitation.
As a reminder, existing Connecticut law prohibits employers from inquiring about a prospective employee’s prior arrests, criminal charges, or convictions on an initial employment application.
There is an exception when the employer is required to do so by state or federal law and to comply with bonding requirements.
Employers are permitted to ask about criminal background at other steps in the hiring process.
When they do, they must include a standard notice on the form indicating that certain information does not need to be provided, and the requirements of the notice are updated by the new law.
The old language must be used until Dec. 31, 2022, and the new language applies effective Jan. 1, 2023.
The new requirement is to notify applicants in clear and conspicuous language:
(1) That the applicant is not required to disclose the existence of any erased criminal history record information, (2) that erased criminal history record information are records pertaining to a finding of delinquency or that a child was a member of a family with service needs, an adjudication as a youthful offender, a criminal charge that has been dismissed or nolled, a criminal charge for which the person has been found not guilty or a conviction for which the person received an absolute pardon or criminal records that are erased pursuant to statute or by other operation of law, and (3) that any person with erased criminal history record information shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.
The new law also allows employees to file complaints with the Department of Labor or the Commission on Human Rights and Opportunities, depending on which section of the law is violated.
Further, an employee may proceed directly to Superior Court for various relief, including possible injunctive relief.
Before conducting a criminal background check using a consumer report (as opposed to asking an applicant to disclose information), employers should ensure they are complying with specific notification requirements of the federal Fair Credit Reporting Act.
If an employer learns that an employee or applicant has a criminal background, employers should ensure that they make carefully reasoned decisions about the relevance of prior convictions to the employment sought.
Failure to do so could give rise to discrimination charges based on race and national origin, even where a policy is applied evenhandedly.
About the author: Rebecca Goldberg is an associate with Berchem Moses PC, focusing on labor and employment matters in state and federal courts and administrative agencies.
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