Dated: 2/14/2018 State and Local Restrictions on Criminal History Inquiries and Background Checks Page 4 of 17
“HOW TO” USER’S GUIDE
The information analyzed in this document is intended to be comprehensive, and is provided in two formats ― a chart at the beginning and a textual summary at the end. The chart provides a quick but detailed analysis of state and local restrictions on criminal history inquiries and background checks. The information in the chart is abstracted to the point of allowing comparisons across jurisdictions, even when the exact text of the law is different. The summary gives a sense of the substantive details of the law, but is not written to be comparable across jurisdictions. The two formats are best used together to get a more complete understanding of the legal restrictions and obligations placed on employers when using criminal history information for employment purposes typically as a prelude to reading the law itself.
We designed this chart to support two scenarios.
In the first scenario, you already have a policy on asking your applicants about their credit or getting credit reports, but you want to make sure that it complies with the law. In this scenario, we see you identifying the restrictions that need to be in your policy from the chart, based on the jurisdictions in which you operate, then identifying the part of your policy that handles each restriction.
In the second scenario, you don’t have a formal, written policy on the subject, and are trying to write one. In this scenario, we see you identifying the types of restrictions that need to be in your policy from the chart, based on the jurisdictions in which you operate. We then see you writing draft policy language for each restriction and checking that language against the underlying statutes using the links to the laws in our footnotes.
In either scenario, we recommend the following steps to get familiar with the information in this document.
• Use the following page to learn about the layout and the various components of the chart.
• Identify the jurisdiction(s) where you have employees or otherwise have an interest in knowing the laws about credit history inquiries and background checks. Keep those jurisdictions on the chart and delete all other information that will not be used. For example, if you have employees in California, Nevada, and Oregon, keep those jurisdictions and delete all other rows of information that will not be used.
• Familiarize yourself with the columns of information ― the who, what, when, and processes of the laws. Refer to the legend at the bottom of the page to understand the provisions of the law. An “x” indicates that a provision applies. Also note that “public contractors” do not include all private employers ― it usually means private businesses that accept contracts from that level of government, or its sublevels. It may be useful for you to pick a jurisdiction with lots of restrictions and read its law while reviewing the chart for the first time. This would introduce you to how the chart and the law correlate to each other.
• When you have an understanding of the types of restrictions, exemptions, etc., refer to the summary highlights for the key provisions of the law.
• Finally, go back to the chart and click on the referenced footnote for a complete reading of the law.
Dated: 2/14/2018 State and Local Restrictions on Criminal History Inquiries and Background Checks Page 4 of 17
Where / Who / When Prohibitions Apply / What Prohibitions Apply / Required Considerations / Required Process /Jurisdiction / Limited application
of rule / On the application / Before the
interview / Background check without interview / Before offer of employment / Making the decision / Juvenile history / Dismissed history / Sealed records / History resulted in diversion program / Arrests / Pending criminal charges / Infractions or other misdemeanors / Convictions / Time-related restrictions apply / Applies only to
some positions / Must consider
other factors / History must be
job related / Notices to
applicant / Right to appeal / Right to copy
of report /
California[1] / C,E / X / A,B / A,B / X / X / X / X / X / X / X / X / X / X / X / X / X / X
California [2] / C, E / X / X
California[3] / C, E / X / X / X / X / X / X
California[4] / C, E / X / X / X / X
9 Richmond[5] / D, F, K / X / A / A / X / X / X / X / X
9 San Francisco[6] / C, E / X / A, B / A, B / X / X / X / X / X / X / X / X / X / X / X / X / X / X
9 Los Angeles[7] / C, E / X / A, B / A, B / X / X / X / X / X / X / X / X / X / X
Colorado[8] / E / X / A, B / X
Colorado[9] / E / X / X / X / X
Connecticut[10] / C, E / X / X / X
Connecticut[11] / E / X / X
9 Hartford[12] / C, D, F, K / X / A / A / X / X / X / X / X / X
9 New Haven[13] / D, H / X / A, B / A, B / X / X / X / X / X / X / X / X
District of Columbia[14] / E, H, I, K / X / A, B / A, B / X / X / X / X / X / X
Florida
9 Jacksonville[15] / C, D, J / X / X / X / X / X / X / X / X / X / X / X
Georgia[16] / C, E / X / X / X
Georgia[17] / E / X / X / X / X / X / X / X / X / X / X
Hawaii[18] / C, E, H / X / A, B / A, B / X / X / X / X / X
Illinois[19] / C, E, H, J, K / X / A, B / A, B / X / X / X / X / X / X / X / X / X
9 Chicago[20] / C, E, H, J, K / X / A, B / A, B / X / X / X / X / X / X / X / X / X / X
Indiana[21] / C, E / X / X / X / X
Kentucky[22] / E / X
9 Louisville[23] / D, G, H, I, J, K / X / A, B / A, B / X / X / X / X / X
Louisiana[24] / E / X
Maine[25] / E / X / A, B / A, B / X / X
Maryland[26] / E / X / X / X / X / X / X
Maryland[27] / E / X / A, B / A, B / X / X
9 Baltimore[28] / E, H, I / X / A, B / A, B / X / X / X / X / X / X / X / X
9 Montgomery County[29] / E, G, H, I, K / X / A, B / X / A, B / X / X / X / X / X / X
9 Prince George County[30] / E, G, H, I, J, K / X / A, B / X / X / X / X / X / X / X / X / X / X
Massachusetts[31] / E, H / X / A, B / A,B / X / X / X / X
9 Boston[32] / D, F / X / A, B / A, B / X / X / X / X / X / X / X / X / X / X / X / X / X
9 Cambridge[33] / D / X / A, B / A, B / X / X / X / X / X / X / X / X / X / X / X / X
9 Worcester[34] / D, F / X / A, B / A, B / X / X / X / X / X / X / X / X / X / X / X / X / X
Michigan[35] / E / X / X
9 Detroit[36] / D, H / X / A, B / A, B / X
Minnesota[37] / C, E, H / X / A, B / A, B / X / X / X / X / X / X / X / X
Missouri
9 Columbia[38] / E, H, J, K / X / A, B / A, B / X / X / X / X / X / X
9 Kansas City[39] / E, H / X / A, B
Nevada / E / X / X / X / X / X / X
New Jersey[40] / E, G, H, K / X / A, B / A, B / X / X / X / X / X / X / X / X
New York[41] / E, G / X / X / X / X
New York[42] / C, E / X / X / X / X
9 New York City[43] / C, E, G, K / X / A, B / X / X / X / X / X / X / X / X / X / X / X / X / X / X
9 Buffalo[44] / E, G, H, I, L / X / A, B / X / X / X / X
9 Rochester[45] / E, G, H, L / X / A, B / A, B / X / X / X / X / X / X / X
North Dakota[46] / E / X / X / X / X
Oklahoma[47] / A, E / X / X
Oregon[48] / C, E, G, H / X / A, B / X / A, B / X
Oregon[49] / C, E / X / X
9 City of Portland[50] / C, E, G, H, I / X / A, B / A, B / X / X / X / X / X / X / X / X
Pennsylvania[51] / B, C, E, M / X / X / X / X / X / X
9 Philadelphia[52],[53] / C, E, G, H / X / A, B / X / A, B / X / X / X / X / X / X / X / X / X / X / X / X / X / X / X
9 Pittsburgh[54] / D, G, K / X / A, B / A, B / X / X / X / X / X / X / X / X / X / X
Rhode Island[55] / E, G, H, J, K / X / A / X / X / X / X / X / X / X / X
Texas[56] / A, E / X / X / X
9 Austin[57] / E / X / A,B / A,B / X / X / X
Utah[58] / E / X
Vermont[59] / A, H / X / A,
Washington[60] / E, H, K / A, B / A, B / X / X / X / X
9 Seattle[61] / C, E, G, I / A, B / X / X / X / X / X / X / X / X / X / X / X / X
Wisconsin[62] / A, B, E, K / X / X / X
9 Madison[63] / C, E, G / X / A, B / X / X / X
Employer Use of Criminal History Records Highlights
These highlights provide a qualitative sense for what these laws are about. They are not a complete analysis. We have generally omitted any relevant exceptions. We have not analyzed situations where these laws might be pre-empted.
CALIFORNIA
· Employers must not use arrests and convictions that resulted in successful completion of a drug treatment program in the denial of employment, benefit, license, or certificate without the individual’s consent. Cal. Penal Code § 1000.4
· Employers must not use for employment purposes any record of arrest or detention that did not result in a conviction (does not apply to pending charges), or any record regarding a referral to, and participation in, any pretrial or post-trial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed. Cal. Labor Code § 432.7
· Employers must not use convictions for marijuana possession if more than two years old for employment purposes. Cal. Labor Code § 432.8
· Employers with five or more employees cannot include on any application for employment, before making a conditional offer of employment to the applicant, any questions that seeks the disclosure of an applicant’s criminal history; inquire into or consider the conviction history of an applicant until after the applicant has received a conditional offer; and conduct a criminal background check in connection with any application for employment, to consider, distribute, or disseminate information on any of the following: a) arrest not followed by conviction (except where the applicant is out on bail or on his or her own recognizance pending trial); b) referral to or participation in a pretrial or postrial diversion program; or c) convictions that have been sealed, expunged, or statutorily eradicated pursuant to law. Government Code 12952
RICHMOND, CA
· Employer must remove any question regarding prior criminal convictions from printed and/or on-line employment application forms.
· Employers must not make any inquiry into an applicant’s conviction history.
· If a criminal background investigation is required by State and/or Federal law for a position or the position is sensitive, the background screening will be conducted after the employer has determined that the applicant is otherwise qualified, and the employer has made a conditional offer of employment. The employer’s consideration of a conviction record will be limited to a substantially job-related conviction and must involve an employer’s individualized assessment, including time elapsed since the offense and any evidence of rehabilitation or other mitigating circumstances. If the employer makes an adverse hiring decision because of a substantially job-related conviction, the applicant must be provided with a written notice of rejection including how the conviction may be related to the job, and given the opportunity to correct any inaccuracies in the conviction record information and to offer any other evidence of rehabilitation or other mitigating circumstances. Richmond Ordinance 14-13 (July 30, 2013)