Connecticut Seal

General Assembly

File No. 175

    February Session, 2016

Substitute House Bill No. 5237

House of Representatives, March 24, 2016

The Committee on Labor and Public Employees reported through REP. TERCYAK of the 26th Dist., Chairperson of the Committee on the part of the House, that the substitute bill ought to pass.

AN ACT CONCERNING FAIR CHANCE EMPLOYMENT.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 31-51i of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2016):

(a) For the purposes of this section, "employer" means any person engaged in business who has one or more employees, including the state or any political subdivision of the state.

(b) No employer or employer's agent, representative or designee may require an employee or prospective employee to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased pursuant to section 46b-146, 54-76o or 54-142a.

(c) An employment application form that contains any question concerning the criminal history of the applicant and is permissible pursuant to subsection (i) or subsection (l) of this section shall contain a notice, in clear and conspicuous language: (1) That the applicant is not required to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased pursuant to section 46b-146, 54-76o or 54-142a, (2) that criminal records subject to erasure pursuant to section 46b-146, 54-76o or 54-142a 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, and (3) that any person whose criminal records have been erased pursuant to section 46b-146, 54-76o or 54-142a 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.

(d) [No] Except for a position for which any provision of the general statutes specifically disqualifies a person from employment by an employer because of a prior conviction for a crime, no employer or employer's agent, representative or designee shall deny employment to a prospective employee solely on the basis that the prospective employee had (1) a prior arrest, criminal charge or conviction, the records of which have been erased pursuant to section 46b-146, 54-76o or 54-142a, (2) a prior conviction for a misdemeanor if five years have elapsed from the prospective employee's date of release from the custody of the Commissioner of Correction, (3) a prior conviction for a felony if ten years have elapsed from the prospective employee's date of release from the custody of the Commissioner of Correction, or [that the prospective employee had] (4) a prior conviction for which the prospective employee has received a provisional pardon or certificate of rehabilitation pursuant to section 54-130a, or a certificate of rehabilitation pursuant to section 54-108f.

(e) [No] Except for a position for which any provision of the general statutes specifically disqualifies a person from employment by an employer because of a prior conviction for a crime, no employer or employer's agent, representative or designee shall discharge, or cause to be discharged, or in any manner discriminate against, any employee solely on the basis that the employee had, prior to being employed by such employer, (1) an arrest, criminal charge or conviction, the records of which have been erased pursuant to section 46b-146, 54-76o or 54-142a, (2) a prior conviction for a misdemeanor if five years have elapsed from the employee's date of release from the custody of the Commissioner of Correction, (3) a prior conviction for a felony if ten years have elapsed from the employee's date of release from the custody of the Commissioner of Correction, or [that the employee had, prior to being employed by such employer,] (4) a prior conviction for which the employee has received a provisional pardon or certificate of rehabilitation pursuant to section 54-130a, or a certificate of rehabilitation pursuant to section 54-108f.

(f) [The] Any portion of an employment application form [which] that contains information concerning the criminal history record of an applicant or employee and is permissible pursuant to subsection (i) or subsection (l) of this section shall only be available to the members of the personnel department of the company, firm or corporation or, if the company, firm or corporation does not have a personnel department, the person in charge of employment, and to any employee or member of the company, firm or corporation, or an agent of such employee or member, involved in the interviewing of the applicant.

(g) Notwithstanding the provisions of subsection (f) of this section, [the] any portion of an employment application form [which] that contains information concerning the criminal history record of an applicant or employee and is permissible pursuant to subsection (i) or subsection (l) of this section may be made available as necessary to persons other than those specified in said subsection (f) by:

(1) A broker-dealer or investment adviser registered under chapter 672a in connection with (A) the possible or actual filing of, or the collection or retention of information contained in, a form U-4 Uniform Application for Securities Industry Registration or Transfer, (B) the compliance responsibilities of such broker-dealer or investment adviser under state or federal law, or (C) the applicable rules of self-regulatory organizations promulgated in accordance with federal law;

(2) An insured depository institution in connection with (A) the management of risks related to safety and soundness, security or privacy of such institution, (B) any waiver that may possibly or actually be sought by such institution pursuant to section 19 of the Federal Deposit Insurance Act, 12 USC 1829(a), (C) the possible or actual obtaining by such institution of any security or fidelity bond, or (D) the compliance responsibilities of such institution under state or federal law; and

(3) An insurance producer licensed under chapter 701a in connection with (A) the management of risks related to security or privacy of such insurance producer, or (B) the compliance responsibilities of such insurance producer under state or federal law.

(h) (1) For the purposes of this subsection: (A) "Consumer reporting agency" means any person who regularly engages, in whole or in part, in the practice of assembling or preparing consumer reports for a fee, which reports compile and report items of information on consumers that are matters of public record and are likely to have an adverse effect on a consumer's ability to obtain employment, but does not include any public agency; (B) "consumer report" means any written, oral or other communication of information bearing on an individual's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living; and (C) "criminal matters of public record" means information obtained from the Judicial Department relating to arrests, indictments, convictions, outstanding judgments, and any other conviction information, as defined in section 54-142g.

(2) Each consumer reporting agency that issues a consumer report that is used or is expected to be used for employment purposes and that includes in such report criminal matters of public record concerning the consumer shall:

(A) At the time the consumer reporting agency issues such consumer report to a person other than the consumer who is the subject of the report, provide the consumer who is the subject of the consumer report (i) notice that the consumer reporting agency is reporting criminal matters of public record, and (ii) the name and address of the person to whom such consumer report is being issued;

(B) Maintain procedures designed to ensure that any criminal matter of public record reported is complete and up-to-date as of the date the consumer report is issued, which procedures shall, at a minimum, conform to the requirements set forth in section 54-142e.

(3) This subsection shall not apply in the case of an agency or department of the United States government seeking to obtain and use a consumer report for employment purposes if the head of the agency or department makes a written finding pursuant to 15 USC 1681b(b)(4)(A).

(i) (1) Except as otherwise provided in subdivision (2) of this subsection, no employer or employer's agent, representative or designee may require any employee or prospective employee to complete an employment application form that contains any question concerning the criminal history of the applicant until such time as such employer, agent, representative or designee has made a conditional offer of employment to such applicant. For purposes of this subsection, a "conditional offer of employment" means an employer's offer of employment that is contingent upon an employee's or prospective employee's successful completion of an employer's application process which may include, but need not be limited to, drug testing, a criminal history records check or the production of valid licensure necessary for such employment.

(2) Notwithstanding the provisions of subdivision (1) of this subsection, an employer may require (A) any current or prospective correction officer, (B) any current or prospective judicial marshal, state marshal, juvenile or adult probation officer, juvenile detention officer or investigator employed by or seeking employment with the Division of Criminal Justice, (C) any member or prospective member of (i) a state or municipal police force, (ii) the police force for the constituent units of the state system of higher education or the independent institutions of higher education in this state, (iii) the police force of Bradley International Airport, or (iv) the Office of the State Capitol Police, or (D) any employee or prospective employee of (i) a broker-dealer or investment adviser registered under chapter 672a, (ii) an insured depository institution, or (iii) an insurance producer licensed under chapter 701a, as described in subdivisions (1) to (3), inclusive, of subsection (g) of this section, to complete an employment application form that contains questions concerning the applicant's criminal history.

(j) Any employee or prospective employee may file a complaint with the Labor Commissioner alleging violations of subsection (i) of this section. Upon receipt of the complaint, the commissioner shall investigate such complaint and may hold a hearing. After the hearing, the commissioner shall send each party a written copy of the commissioner's decision. Any employee or prospective employee who prevails in such hearing shall be awarded reasonable attorney's fees and costs.

(k) Any party aggrieved by the decision of the commissioner may appeal the decision to the Superior Court in accordance with the provisions of chapter 54.

(l) Notwithstanding the provisions of subsections (b) to (i), inclusive, of this section an employer may require an employee or prospective employee to disclose the existence of any arrest, criminal charge or conviction if such disclosure is required under any applicable state or federal law.

This act shall take effect as follows and shall amend the following sections:

Section 1

October 1, 2016

31-51i

LAB

Joint Favorable Subst.

 

The following Fiscal Impact Statement and Bill Analysis are prepared for the benefit of the members of the General Assembly, solely for purposes of information, summarization and explanation and do not represent the intent of the General Assembly or either chamber thereof for any purpose. In general, fiscal impacts are based upon a variety of informational sources, including the analyst's professional knowledge. Whenever applicable, agency data is consulted as part of the analysis, however final products do not necessarily reflect an assessment from any specific department.

OFA Fiscal Note

State Impact:

Agency Affected

Fund-Effect

FY 17 $

FY 18 $

Labor Dept.

GF - Cost

47,457

94,913

State Comptroller - Fringe Benefits1

GF - Cost

18,954

37,908

Various State Agencies

All Funds - Cost

Potential Minimal

Potential Minimal

Note: All Funds=All Funds; GF=General Fund

Municipal Impact:

Municipalities

Effect

FY 17 $

FY 18 $

Various Municipalities

Cost

Potential Minimal

Potential Minimal

Explanation

The bill provides employment protections for certain employees and job applicants with criminal conviction records. This results in: (1) a General Fund cost of $66,411 in FY 17 (partial year) and $132,821 in FY 18, and (2) a potential minimal cost to various state agencies and municipalities.

The bill prohibits criminal history questions in the job application process and requires private employers to follow the same rules as public employers when asking about criminal history. Employers can ask these questions after a conditional offer of employment is made. There may be a minimal printing cost to those agencies that would have to alter their job applications to adhere to the terms of the bill.

The bill allows aggrieved employees and applicants to file a complaint with the labor commissioner, who must investigate the complaint and may hold a hearing. Based on the number of complaints for a similar provision for state employees heard annually by the Commission on Human Rights and Opportunities, it is anticipated that the number of investigations and hearings will require additional resources within the Department of Labor (DOL). Specifically, the DOL would require one part-time Wage Enforcement Agent ($41,875 for salary and $16,275 for fringe costs) and one part-time Staff Attorney ($53,038 for salary and $21,183 for fringe costs) to investigate, hold hearings, render decisions and write reports.

There is no impact to the Judicial Department from allowing appeals in Superior Court. The number of appeals is not anticipated to be great enough to need additional resources. The court system disposes of over 500,000 cases annually.

The Out Years

The annualized ongoing fiscal impact identified above would continue into the future subject to inflation.

OLR Bill Analysis

sHB 5237

AN ACT CONCERNING FAIR CHANCE EMPLOYMENT.

SUMMARY:

This bill provides employment protections for certain employees and job applicants with criminal conviction records. It generally prohibits employers (including their agents, representatives, and designees) from denying employment to a job applicant, or discharging or discriminating against a current employee, solely because he or she was convicted of a (1) misdemeanor, if it has been at least five years since he or she was released from the correction commissioner's custody or (2) felony, if it has been at least 10 years since he or she was released from the commissioner's custody. (It is unclear, but it appears that these protections would not extend to those who were convicted but never imprisoned.) The prohibitions do not apply to positions for which state law specifically disqualifies someone because of a prior criminal conviction.

The bill also generally prohibits employers from requiring an employee or prospective employee to complete a job application with questions about their criminal history until the employer makes a “conditional offer of employment.” Under the bill, this is an employment offer that requires an applicant to successfully complete the employer's application process, which can include drug testing, criminal history records checks, or verifying the validity of any necessary licenses. The bill allows exceptions on applications for numerous positions specified in the bill. It also allows employers to require the disclosure of any arrest, criminal charge, or conviction, including those that have been erased, if it is required under any applicable state or federal law.

Under the bill, applicants and employees can file complaints about violations of the bill's job application provisions with the labor commissioner.

EFFECTIVE DATE: October 1, 2016

JOB PROTECTIONS & EXCEPTIONS

Current law prohibits employers from denying employment to a job applicant, or discharging or discriminating against a current employee, solely because he or she (1) has criminal records that were erased under certain circumstances or (2) a prior conviction for which he or she received a pardon or certificate of rehabilitation under certain circumstances. The bill extends this prohibition to include applicants and employees convicted of a (1) misdemeanor, if it has been at least five years since he or she was released from the correction commissioner's custody or (2) felony, if it has been at least 10 years since he or she was released from the commissioner's custody. It also allows exceptions to all of these prohibitions, including those in current law, if state law specifically disqualifies someone because of a prior criminal conviction.

EXCEPTIONS FOR APPLICATIONS

The bill allows employers to include questions about an applicant's criminal history on applications for the following positions:

ENFORCEMENT

The bill allows employees and applicants to file a complaint with the labor commissioner alleging that an employer required them to prematurely complete a job application with questions about their criminal history. Upon receiving the complaint, the commissioner must investigate and may hold a hearing. After the hearing, he must send each party a written copy of his decision and award reasonable attorney's fees to a prevailing employee or applicant. Any party aggrieved by the commissioner's decision may appeal to Superior Court.

By law, violators of either of the bill's provisions would also be subject to a $300 per violation civil penalty imposed by the Department of Labor (CGS 31-69a).

COMMITTEE ACTION

Labor and Public Employees Committee

Joint Favorable Substitute

Yea

13

Nay

0

(03/10/2016)

TOP

1 The fringe benefit costs for most state employees are budgeted centrally in accounts administered by the Comptroller. The estimated active employee fringe benefit cost associated with most personnel changes is 39.94% of payroll in FY 17 and FY 18.