February 23, 2006
PARDONS FOR FELONIES COMMITTED IN OTHER STATES
By: George Coppolo, Chief Attorney
You asked how someone with a felony conviction in Florida can get a pardon. You also asked whether an employer can discriminate against a job applicant because he has a felony conviction.
A person with a felony conviction in Florida must apply to Florida's Office of Executive Clemency in Tallahassee for a pardon. The Connecticut Board of Pardons and Parole is authorized to give pardons for crimes committed in Connecticut.
State law prohibits an employer from discriminating against someone because he has a criminal record if he has been granted an absolute pardon. But this law appears to be limited to people who are given a pardon in Connecticut for crimes committed in Connecticut. State law also makes it illegal to deny someone state employment or a state license solely because he has a criminal record.
Federal anti-discrimination law appears to prohibit employers from discriminating against people solely because they have a criminal record. The federal agency that enforces this law has concluded that such discrimination disproportionably affects African-American and Hispanic men because they have higher conviction rates than Caucasian men.
We have enclosed a copy of a recently prepared OLR Report that describes in great detail the consequences of a felony conviction with respect to employment (2005-R-0311).
Florida's Executive Clemency Board must consider, but is not be limited to, the following factors when determining whether to grant an applicant a pardon:
1. the nature of the offense;
2. whether the applicant has any history of mental instability, drug or alcohol abuse;
3. whether the applicant has any subsequent arrests, including traffic offenses;
4. the applicant's employment history;
5. whether the applicant is delinquent on any outstanding debts or child support payments; and
6. letters submitted in support of, or opposition to, the grant of executive clemency.
We have enclosed information about the Clemency Office including a pardon application form. Their web site is http://fpc.state.fl.us/Clemency.htm.
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). But this law appears to only apply to pardons granted in Connecticut. Thus it is unclear whether a person who has received a pardon in another state is covered.
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).
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)).
While asking job applicants to indicate whether they have been convicted of a crime is permissible, 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).