April 5, 2005
CONSEQUENCES OF A FELONY CONVICTION REGARDING EMPLOYMENT
By: George Coppolo, Chief Attorney
Chris Reinhart, Senior Attorney
Jennifer Nelson, Legislative Intern
You asked what are the consequences of a felony conviction with respect to employment.
A convicted felon could lose a professional license or permit. But, licensing agencies are restricted in their ability to revoke licenses because a person cannot be disqualified from engaging in any occupation, profession, or business for which a state license or permit is required solely because of a prior conviction of a crime except under certain conditions.
Employers can ask job applicants whether they have been convicted of a crime although federal anti-discrimination laws place some restrictions on the use of criminal histories. State law also prohibits employers, including the state and its political subdivisions, from taking certain actions against people who have their conviction records erased by an absolute pardon.
In addition, a number of statutes apply to people convicted of certain felonies or types of crimes.
1. The State Board of Education (SBE) cannot issue or renew, and must revoke, the certificate, authorization, or permit of someone convicted of certain crimes. The SBE can also take one of these actions if the person is convicted of a crime of moral turpitude or of such a nature that the board feels that allowing the holder to have the credential would impair the credential's standing.
2. The Department of Children and Families must deny a license or approval of a foster family or prospective adoptive family if any member of the family's household was convicted of a crime that falls within certain categories, which can include felonies.
3. Someone convicted under federal or state law of a crime involving possession or sale of a controlled substance is not eligible for federal assistance for higher education expenses for certain periods.
In addition, private organizations may also consider a person's criminal background. For example, Little League recently adopted regulations to check volunteers and employees for convictions of crimes against or involving minors.
Many statutes authorize government agencies to revoke or suspend licenses or permits for conviction of a felony. But the law also restricts the ability of agencies to do so. A person is not “disqualified to practice, pursue or engage in any occupation, trade, vocation, profession or business for which a license, permit, certificate, or registration is required to be issued by the state of Connecticut or any of its agencies solely because of a prior conviction of a crime” (CGS § 46a-80(a)).
Connecticut law declares the public policy of encouraging employers to hire qualified ex-offenders (CGS § 46a-79). A person is not disqualified from state employment solely because of a prior conviction of a crime. The state can deny employment or a license, permit, certificate, or registration if the person is found unsuitable after considering (1) the nature of the crime, (2) information relating to the degree of rehabilitation, and (3) the time elapsed since the conviction
or release (CGS § 46a-80). These statutes (CGS § 46a-79 et seq.) prevail over agencies' authority to deny licenses based on the lack of good moral character and to suspend or revoke licenses based on conviction of a crime. But they do not apply to law enforcement agencies, although an agency can adopt such a policy (CGS § 46a-81).
Licenses, Permits And Conviction Of A Felony
Many licensing and permit statutes authorize an agency to suspend or revoke a license or permit based on conviction of a felony, including the following.
1. Architects (CGS § 20-294).
2. Private detectives, watchmen, guards, and patrol services (CGS § 29-158).
3. Professions under the jurisdiction of the Department of Public Health specifically including healing arts, medicine and surgery, osteopathy, chiropractic, natureopathy, podiatry, physical therapists, nursing, nurse's aides, dentistry, optometry, opticians, psychologists, marital and family therapists, clinical social workers, professional counselors, veterinary medicine, massage therapists, dietician-nutritionists, acupuncturists, paramedics, embalmers and funeral directors, barbers, hairdressers and cosmeticians, and hypertrichologists (CGS § 19-17 and various other statutes).
4. Attorneys (CGS § 51-91a).
5. Judges, family support magistrates, workers' compensation commissioners (CGS § 51-51i).
6. Radiographers and radiologic technologists (CGS § 20-74cc).
7. Midwives (CGS § 20-86h).
8. Licensed: electricians; plumbers; heating, piping, and cooling contractors and journeymen; elevator contractors and craftsmen; solar contractors and journeymen; fire protection sprinkler contractors and journeymen; irrigation contrators and journeymen; sheet metal contractors and journeymen; and automotive and flat glass contractors and journeymen.
9. Major contractors (CGS § 20-341gg).
10. Lead abatement consultants, contractors, and workers (CGS § 20-481).
11. Public service gas technicians (CGS § 20-540).
12. Certified public accountants (CGS § 20-281a).
13. Psychologists (CGS § 20-192).
14. Individuals and businesses selling insurance (CGS §§ 38a-702k and 38a-660(h)).
15. Licensed social workers (CGS § 20-195p).
16. Athlete agents (CGS § 20-559e).
In addition, the statutes prohibit licensing a convicted felon as a pawnbroker (CGS § 21-40), a professional bondsman (CGS § 29-145) or a bail enforcement agent (§ 29-152f). A person convicted of a felony cannot be employed as an agent, operator, assistant, guard, watchman, or patrolman, subject to the general state policy (CGS § 29-156a). A chief of police or first selectman shall refuse to issue a license for the purchase of precious metals and stones to a person who has been convicted of a felony (CGS § 21-100). The commissioner of the Department of Consumer Protection can suspend, revoke, or refuse to grant or renew a permit for the sale of alcoholic liquor (CGS § 30-47), registration for a manufacturer or wholesaler of drugs (CGS § 21a-70) if convicted of a felony.
CGS § 19a-87a grants the public health commissioner the discretion to refuse to issue, suspend or revoke a license to a day care home or group day care center if the owner or operator or any employee having direct contact with children has been convicted of any felony in which the victim is under age 18.
Licenses, Permits and Certain Crimes
Other licensing and permit statutes include provisions on suspension or revocation on conviction of certain crimes (such as those related to the profession, fraud, or extortion) or lack of good moral character. These could involve felony convictions. These statutes include the following.
1. Consumer collection agencies (for actions of a partner, officer, director, or employee) (CGS § 36a-804).
2. Real estate appraisers (CGS §20-521).
3. Occupational therapists (CGS §20-74g).
4. Real estate brokers and salespersons (CGS §§ 20-316, 20-320).
5. Television and radio service dealers, electronics technicians, apprentice electronics technicians, and antenna technicians, radio electronics technicians (CGS § 20-354).
6. Sanitarians (CGS § 20-363).
7. Landscape architects (CGS § 20-373).
8. Interior designers (CGS § 20-377r).
9. Hearing aid dealers (CGS § 20-404).
10. Community association managers (CGS § 20-456).
11. Pharmacy licensees (CGS § 20-579).
12. Practitioners distributing, administering, or dispensing controlled substances (CGS § 21a-322).
13. New home construction contractors (CGS § 20-417c).
14. Physical Therapists and physical therapy assistants (CGS § 20-73a)
The consumer protection commissioner can refuse to issue or renew the home improvement contractor or salesman registration of anyone required to register as a sexual offender. The Home Inspection Licensing Board can refuse to issue or renew a home inspector license or a home inspector intern permit to anyone required to register as a sexual offender (CGS §§ 20-426, 20-494).
The motor vehicles commissioner may revoke or permanently disqualify commercial operator licenses (CGS § 14-44k).
The public safety commissioner may revoke or suspend a permit or license for the storage, transportation, and use of explosives and blasting agents (CGS § 29-349(f)).
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 (Conn. Agencies Regs. § 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.
Pam Libbey of the Department of Administrative Services (DAS) reports that the department does not have a policy specifying when background checks, including criminal history checks, must be done for state job applicants, and each agency sets its own rules.
Asking job applicants to indicate whether they have been convicted of a crime is permissible but Title VII of the Civil Rights Act of 1964 appears to restrict an employer's ability to use criminal background information in the hiring process (42 USC. § 2000e, et seq.). The Equal Employment Opportunities Commission (EEOC), the federal agency that enforces Title VII, has decided that disqualifying people who have criminal records from jobs is discriminatory because the practice disproportionately affects African American and Hispanic men. (Those 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 consideration, but must show that a conviction-based disqualification is justified by “business necessity.” The legal test requires employers to examine the (1) nature and gravity of the offense or offenses, (2) length of time since the conviction or completion of sentence, and (3) nature of the job held or sought. Under this test, employers must consider the job-relatedness of a conviction, the circumstances of the offense, and the number of offenses (EEOC Compliance Manual, § 604 Appendices).
State law prohibits employers, including the state and its political subdivisions, from taking certain actions against people who have their conviction records erased by an absolute pardon. An employer cannot require an employee or prospective employee to disclose such records or deny employment or discharge an employee solely because of records. An employment application form asking for criminal history information must contain a clear notice that the applicant need not disclose erased information and that he is considered never to have been arrested and can swear it under oath (CGS § 31-51i).
The State Board of Education (SBE) can revoke a teacher or school administrator certificate or an authorization or permit (such as those held by athletic coaches, substitute teachers, and teachers teaching outside their endorsement area) of a person convicted of a crime of moral turpitude or of such a nature that the board feels that allowing the holder to keep the credential would impair the credential's standing (CGS § 10-145b(m)(1)).
The SBE must revoke a certificate, permit, or authorization when the holder is convicted of certain crimes. This includes convictions for (1) a capital felony; (2) arson murder; (3) any class A felony; (4) a class B felony, except first-degree larceny, computer crime, or vendor fraud; (5) risk of injury to a minor; (6) deprivation of a person's civil rights by a person wearing a mask or hood; (7) second-degree assault of an elderly, blind, disabled, pregnant, or mentally retarded person; (8) second-, third-, or fourth-degree sexual assault; (9) third-degree promoting prostitution; (10) substitution of children; (11) third-degree burglary with a firearm; (12) crimes involving child neglect; (13) first-degree stalking; (14) incest; (15) obscenity as to minors; (16) importing child pornography; (17) criminal use of a firearm or electronic defense weapon; (18) possession of a weapon on school grounds; (19) manufacture or sale of illegal drugs; and (20) crimes involving child abuse (CGS § 10-145b(m)(2)).
The SBE may deny a certificate, authorization, or permit application if the applicant has been convicted of a crime of moral turpitude or of such a nature that the board feels that granting the credential would impair its standing (CGS § 10-145b(m)(3)). The SBE cannot issue or reissue a certificate for a person convicted of one of the crimes listed above until at least five years after the person finishes serving his sentence (including probation or parole) for the conviction (CGS § 10-145i).
STUDENT LOANS AND AID
A higher education student is not eligible for federal assistance if he is convicted under federal or state law of a crime involving possession or sale of a controlled substance. This includes grants, loans, or work assistance. For a conviction of possession, a person is ineligible for one year for a first offense, two years for a second offense, and indefinitely for a third offense. For a sale conviction, a person is ineligible for two years
for a first offense and indefinitely after a second offense. A student can regain eligibility before the end of the specified period if (1) he satisfactorily completes a drug rehabilitation program with certain criteria or (2) the conviction is reversed and otherwise removed (20 USC § 1091(r)).
Other organizations may consider a person's criminal background. For example, Little League regulations for the 2003 season require volunteers and employees to undergo annual background checks and prohibit anyone convicted of a crime against or involving a minor from participating as a volunteer or employee. At a minimum, the regulations require local leagues to check the sex offender registry in the state where the applicant resides or, if unavailable, a state criminal background check if allowed by law. Leagues can elect to conduct a national criminal background check (see OLR Report 2003-R-0048).