March 17, 2000
CRIMINAL RECORDS AND STATE EMPLOYMENT
By: Susan Price-Livingston, Research Attorney
You asked the following:
1. how many: (a) state employees have felony convictions, and (b) Judicial Branch or Department of Corrections employees have these or misdemeanor convictions;
2. which state jobs prohibit the hiring of people with criminal records; and
3. for a summary of state law prohibiting discrimination in state employment based on a person's criminal record.
We are not aware of anyone who maintains a record of the number of state employees with criminal records. Both the Judicial Branch's Melissa Farley and the Department of Corrections (DOC) legislative liaison Scott Semple report that their agencies do not compile such lists, and would have to go through each employee's personnel file to come up with a number.
Many state agencies ask the State Police to do criminal background checks on job applicants, but there is no statewide policy mandating when this must be done. Law enforcement agencies are the only state entities that can automatically bar felons from employment. An otherwise-qualified person with a criminal record must be considered for all other state jobs.
Connecticut's public policy is to encourage employers to hire qualified ex-offenders (CGS §46a-79). Law enforcement agencies (which include Sheriff's Department court house security and transportation personnel) are the only governmental entities in the state that by law can deny employment based solely on a person's criminal history (CGS § 46a-81). In all other cases, state officials cannot deny felons employment, occupational licenses, or permission to engage in state-regulated professions without examining (1) the relationship between the crime committed and the job or license that the person is being considered for, (2) the convicted person's degree of rehabilitation, and (3) the time elapsed since conviction or release (CGS § 46a-80).
When the state makes an adverse employment decision based on conviction information, it must give the candidate written notice of the information it relied on and the reasons for its decision. It cannot use arrest records that were not followed by a conviction or convictions that have been erased in making employment or licensing decisions, and it cannot distribute or disseminate such information in connection with an application for employment or for a permit, license, certificate, or registration (Id.).
The state Personnel Act permits state agencies to discharge classified employees for incompetence or “other reasons relating to the effective performance of [their] duties” (CGS §5-240(c)). Its regulations allow the state to dismiss employees who are convicted of a (1) felony, (2) misdemeanor committed while on duty; or (3) misdemeanor committed while off-duty that could affect their job performance (Regs. State Agencies §5-240-1a). In most cases, it must give employees notice and a hearing prior to dismissal. And a union member may grieve and get an arbitrator's ruling on whether the conviction was just cause for discharge under the specific terms of the union contract.
Law Enforcement and Corrections Personnel
State law requires criminal history checks of correctional personnel applying for positions that will involve direct contact with prisoners or inmates. And all law enforcement personnel who go through the Police Officer Standards and Training program, including state and local police officers and Sheriff's Department courthouse security and prisoner transport personnel, must submit to such checks by the State Police's Bureau of Identification.
DOC Guidelines. Since 1998 the DOC has had guidelines setting disqualification periods for job applicants with criminal histories. Table 1 summarizes them.
Table 1: DOC Hiring Guidelines
DOC won't consider
Failure to disclose criminal record on job application
DOC won't consider
The longer of two years from the last misdemeanor disposition, or complete satisfaction of sanction
Misdemeanor for which the applicant served prison time
The longer of three years from the last disposition, or complete satisfaction of sanction
Multiple misdemeanor convictions
The longer of five years from the last disposition or complete satisfaction of sanctions
Multiple misdemeanor incarcerations
The longer of seven years from last disposition or complete satisfaction of sanctions
(Source: DOC Employment, Selection, Transfer and Promotion Directive, 1/12/98)
FEDERAL LAW LIMITING EMPLOYER USE OF CRIMINAL CONVICTION INFORMATION
Title VII of the Civil Rights Act of 1964 restricts the state's ability to use criminal convictions in employment decisions (42 USC §2000e-5, et seq.). The Equal Employment Opportunities Commission (EEOC), the federal agency that enforces Title VII, has ruled that automatically disqualifying people who have criminal records from jobs is discriminatory because the practice disproportionately affects African American and Hispanic men. (These two groups have much higher criminal conviction rates than do Caucasian men.)
The EEOC has ruled repeatedly that covered employers cannot simply bar felons from jobs, but must show that a conviction-based disqualification is justified by “business necessity.” The legal test requires employers to examine (1) the job-relatedness of each conviction, (2) the nature of the crime committed, (3) the number of convictions, (4) the facts surrounding each offense, (5) the length of time between the conviction and the employment decision, (6) the person's employment history before and after the conviction, and (7) the applicant's efforts at rehabilitation. According to the EEOC, the job-relatedness inquiry is the most important, and focuses on whether the job position applied for presents an opportunity for the applicant to engage in the same type of misconduct which resulted in the conviction (Bednar, “Employment Law Dilemmas,” 11 Utah Bar J. 15 (Dec. 1998)).