Category: Administrative law

CCRC opposes rule requiring federal job seekers to disclose some non-conviction records

In March, we described a proposed federal rule that would expand the types of criminal records that must be disclosed by applicants seeking federal jobs and contracting work.  Specifically, OPM proposes for the first time to require individuals applying for federal employment or contracts to disclose whether they have participated in pretrial diversion programs in the last 7 years.  Our letter commenting on OPM’s proposal (reprinted below) points out that diversion is increasingly favored by states as a means of encouraging rehabilitation, and that this goal is advanced by the promise of avoiding the disabling collateral consequences and stigma that follow conviction.  In treating diversions like convictions, the OPM proposal would subvert the many benefits of diversion that have encouraged their increased use by prosecutors in recent years, including allowing for positive community perceptions of the justice system. **Update (5/29/19): The federal government has withdrawn this proposal, as reported by the Washington Post.  The letter cites research from the Restoration of Rights Project to show that diversion or deferred adjudication, or both, are authorized by statute in all but one state.  All but eight states provide for record-closing and restoration of rights after successful completion of these dispositions, and an increasing number of jurisdictions now prohibit their consideration by employers and licensing boards.  At a time of growing consensus in Congress and the states about the need to prioritize rehabilitation and reintegration for individuals with a criminal record, OPM should be moving to reduce—rather than increase—the collateral consequences of diversion. Finally, the letter argues that OPM’s proposal is ambiguous about whether prosecutor-directed diversion or sealed diversions must be disclosed.  Uncertainty about what diversion records must be disclosed could dissuade people from applying for work (or subject them to unfair punishment for non-disclosure).  Such an ambiguous disclosure requirement will be hard to enforce, and susceptible to court challenge. Our public comment, urging the federal government to withdraw its proposed requirement, is reprinted in full below.  We have also added our name to a comment filed by a large number of organizations concerned with improving opportunities for people with a criminal record. Public comments may be submitted by April 23, 2019 directly at this link or through Generation Progress’ comment tool. April 18, 2019 National Bureau of Background Investigations U.S. Office of Personnel Management 1900 E Street, N.W. Washington, D.C. 20415 Attn:  Donna McLeod Re:  Comments to OPM’s Declaration for Federal Employment Form (OF306) Dear Ms. McLeod, Our organization, the Collateral Consequences Resource Center, promotes public engagement on issues raised by the collateral consequences of arrest or conviction.  We document and analyze law reform efforts aimed at facilitating reintegration for people with a criminal record. We are writing in response to the Office of Personnel Management’s (OPM) request for comments on its proposed revision of the Declaration for Federal Employment, Optional Form (OF) 306, the form for applicants for federal employment and contract work.  See 84 Fed. Reg. 5733 (February 22, 2019).  Specifically, we would like to offer comments on the proposed requirement that applicants disclose whether they have participated in “a pretrial intervention or diversionary program or the like” in the last 7 years.  For ease of discussion, we will refer to these dispositions as “pretrial diversion.” For the following reasons, we encourage OPM to withdraw the proposed requirement for disclosure of diversions. Diversion is Increasingly Favored by States as a Means of Encouraging Rehabilitation Pretrial diversion refers to a procedure or procedures in which a prosecutor or court agree with a person accused of a crime to resolve criminal charges without a conviction, if the person complies with certain conditions.[1]  Thus broadly defined, pretrial diversion is authorized by statute in 49 states and the District of Columbia.[2]  It can also be authorized by prosecutorial consent (as in most situations in the federal system[3]) or by a court rule.  It may or may not require a person to plead guilty as a condition of participation. The trend in the states in the past decade has been to expand the availability of these non-conviction dispositions,[4] “to rehabilitate individuals who have committed crimes, to make reparation to crime victims, and to advance public safety.”[5]  Their rehabilitative purpose is advanced by the promise of avoiding the disabling collateral consequences and stigma that follow conviction. There are two primary types of diversions.  In a pure diversion, a prosecutor offers and a person agrees to be placed in a community-based diversion program and comply with certain conditions.  In a deferred adjudication—available in all but 13 states in at least some cases—a person who has been charged typically agrees to plead guilty, and the court agrees to place the person on probation and not enter a conviction.[6]  After successful completion of a diversion program, the charges are dismissed and the case is terminated. In most states, the person will become eligible to have the arrest and court records closed to the public via expungement, sealing, or some similar procedure.[7] The American Law Institute, the leading national law reform organization, advocates for diversionary dispositions in its 2017 Model Penal Code: Sentencing (deferred prosecution and deferred adjudication), with roots dating back to the 1960s and 1970s.[8]  The American Bar Association, National District Attorneys Association, and major national defender organizations have joined together to urge jurisdictions to support and fund prosecutors and others seeking to develop “deferred adjudication/deferred sentencing/diversion options that avoid a permanent conviction record” for a people deemed appropriate for a community supervision sentence.[9] OPM’s Proposal Treats Diversions like Convictions While state lawmakers, judges, and prosecutors favor diversionary dispositions in appropriate cases to help people avoid the restrictions and stigma of a conviction, OPM’s proposal disfavors them by treating them like convictions. Specifically, the proposal would amend the federal employment and contracting form, OF 306, to require an applicant to disclose not only whether the applicant has current pending charges, or whether, during the last 7 years, the applicant has been convicted of a crime, served time in jail or prison, or been on probation or parole, but also—for the first time—whether the applicant has been “subject to judge or court specified conditions requiring satisfactory completion before a criminal charge has been or will be dismissed.”  See 84 Fed. Reg. 5733 (February 22, 2019).  Disclosure, and the likely resulting discrimination, would subvert the many benefits of diversion that have encouraged their increased use by prosecutors in recent years, including “allowing for positive community perceptions of the justice system.”[10] At a time of growing consensus in Congress and the states about the need to prioritize rehabilitation and reintegration for individuals with a criminal record, OPM should be moving to reduce—rather than increase—the collateral consequences of diversion (as Indiana and Wisconsin did in 2018 when they prohibited licensing boards from considering arrests not resulting in conviction, or California and Nevada did in 2017 when they prohibited employers from considering an applicant’s successful completion of diversion).[11] OPM’s Proposal is Ambiguous About What Must be Disclosed The language of the OPM proposal does not make clear exactly what must be disclosed. First, the proposal does not make clear whether prosecutor-directed diversions are covered.  While the language of OPM’s notice says “OPM is proposing to add a requirement to admit charges for which one has been placed into a pretrial intervention or diversionary program or the like,” the question itself says disclosure is required if the applicant has been “subject to judge or court specified conditions requiring satisfactory completion before a criminal charge has been or will be dismissed.”  Are a prosecutor’s diversion conditions “court specified”? Second, the proposal does not make clear if diversions must be reported if the record has been sealed under state law.  While the OF 306 states that a person may omit “any conviction for which the record was expunged under Federal or state law,” the proposal does not amend that section or otherwise make clear whether a person whose diversion was expunged must nonetheless disclose it.  Whether or not it is intentional, the failure to authorize applicants to omit expunged diversions perversely results in harsher treatment of diversions than convictions.  Moreover, the term “expunge” does not have a commonly accepted definition, and many states use other terms such as seal, erase, annul, or set-aside to describe record-closing relief.[12]  States also give differing effect to these terms, ranging from a limited sealing to full destruction of the record.[13]  Assuming expunged diversions may be omitted on the same basis as expunged convictions, may these dispositions also be omitted?[14] This lack of clarity has real consequences.  A false statement on the OF 306 can be grounds for rejection, termination, or criminal prosecution for false statements under 18 U.S.C. § 1001.  Therefore, uncertainty about whether or not prosecutor-directed or sealed diversions must be disclosed could dissuade people from applying for work (or subject them to unfair punishment for non-disclosure).  Moreover, such an ambiguous disclosure requirement will be hard to enforce, and susceptible to court challenge. Because the proposed requirement for disclosure of diversions is ill-advised as a matter of policy and legally problematic, we respectfully encourage OPM to withdraw it.  At the very least, OPM should amend the language to clarify whether prosecutor-directed diversions and records that have been sealed must be disclosed. Thank you for your consideration. Sincerely, Margaret Colgate Love Executive Director Collateral Consequences Resource Center [1] See Pretrial Diversion from the Criminal Justice Process, 83 Yale L.J. 827 (1974). [2] See Pretrial Diversion, National Conference of State Legislatures (September 28, 2017), available at http://www.ncsl.org/research/civil-and-criminal-justice/pretrial-diversion.aspx (providing statutes for 48 states and the District of Columbia); S.D. Codified Laws §§ 23A-3-35, 23A-3-36, 23A-27-12.2, 23A-27-13.  The one state that apparently lacks diversion by statute, North Dakota, provides for diversion by court rule.  See N.D. R. Crim. P. 32.2. [3] See United States Attorneys Manual, § 9-22.000 et seq.; 18 U.S.C. § 3607(a). [4] See Margaret Colgate Love, Alternatives to Conviction: Deferred Adjudication as a Way of Avoiding Collateral Consequences, 22 Fed. Sent’g Rep. 6, 7 (2009) (finding that deferred adjudication schemes “are statutorily authorized in over half the states”). [5] See Model Penal Code: Sentencing §§ 6.03, cmt. (2017). [6] See Margaret Love, Joshua Gaines & Jenny Osborne, Forgiving & Forgetting in American Justice: A 50-State Guide to Expungement and Restoration of Rights, Collateral Consequences Resource Center, at 13-14 (August 2018), available at https://ccresourcecenter.org/tag/forgiving-and-forgetting/. [7] Our research indicates that 42 states allow record-closing for diversion, including deferred adjudication where available, either explicitly or by allowing record-closing for dismissals without excluding diversion or deferred adjudication (some states have additional eligibility requirements such as waiting periods and ineligible offenses).  See Restoration of Rights Project, Collateral Consequences Resource Center, Chart 4 (“Judicial Expungement, Sealing, and Set-aside”), available at https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside/; State Profiles, available at http://restoration.ccresourcecenter.org/.  Eight states do not provide for record-closing and restoration of rights after successful completion of diversion and/or deferred adjudication.  Id.  Even federal law provides for expungement of diversions, though on an admittedly fairly limited basis.  See 18 U.S.C. § 3607(a) and (c) (deferred adjudication for first misdemeanor drug possession, and expungement if the defendant was under age 21 at the time of the offense). [8] See Model Penal Code: Sentencing §§ 6.03, 6.04 (2017); Love, Alternatives to Conviction, supra note 4, 22 Fed. Sent’g Rep. at 7 (‘‘In the 1970s, many states adopted deferred adjudication laws that were evidently inspired by the Corrections Articles of the Model Penal Code.”). [9] ABA 2007 Report with Recommendation #103A (Commission on Effective Criminal Sanctions, co-sponsored by the National District Attorneys Association, National Association of Criminal Defense Attorneys, National Legal Aid and Defenders Association). [10] See Erica McWhorter & David LaBahn, Confronting the Elephants in the Courtroom Through Prosecutor Led Diversion Efforts, 79 Alb. L. Rev. 1221, 1239 (2016).  While it is true that a number of states allow closed records to be reviewed for law enforcement employment and other sensitive positions, federal law already accounts for this concern through more rigorous background investigations and disclosure forms for sensitive, national security, and public trust positions. [11] Ind. Code § 25-1-1.1-6(d); Wis. Stat. § 111.335(4) (certain offenses exempted); Cal. Gov’t Code § 12952; Nev. Rev. Stat. Ann. § 284.281(4) (covering public employment, with exceptions). [12] See Love, Alternatives to Conviction, supra note 4, 22 Fed. Sent’g Rep. at n.4; Love et. al, Forgiving & Forgetting in American Justice, supra note 6, at 25 n. 4. [13] See Restoration of Rights Project, Chart 4, supra note 7. [14] This ambiguity extends to convictions as well, a further problem with the OPM policy that we note but will not at this point address further.  It is a problem in federal law that is not confined to the OPM policy. Read more

Administration wants federal job seekers to disclose participation in diversion

A proposed federal rule, now open for public comment, would expand the types of criminal records that must be disclosed by applicants seeking federal jobs and contracting work.  On February 22, 2019, the Office of Personnel Management (OPM) proposed a new rule to modify its “Declaration for Federal Employment” form (OF–306)—used by federal agencies in applications for federal employment or contracting—to require applicants to disclose not only whether they have been convicted, imprisoned, on probation, or on parole in the last 7 years, as under the current rule, but also whether they have participated in any pretrial diversion or intervention programs during that look-back period.  Such pretrial diversion and intervention programs “allow individuals to agree to comply with specific conditions in lieu of criminal prosecution and upon compliance, to have the charge(s) dismissed.”  No conviction is entered—and in some cases, neither is a plea. **Update (5/29/19): The federal government has withdrawn this proposal, as reported by the Washington Post. Reform advocates and a growing number of state and federal prosecutors rightfully promote diversionary dispositions as key tools to reduce the collateral consequences of criminal justice system involvement.  But OPM’s proposed rule treats participation in a diversion program—even where there is no admission of guilt—as a marker of criminality.  By requiring candidates to disclose participation in diversion programs, OPM’s new proposed rule subverts the benefits of diversion: “prevent[ing] collateral consequences associated with [an] incident and allow[ing] for positive community perceptions of the justice system.”  See, e.g., Erica McWhorter & David LaBahn, Confronting the Elephants in the Courtroom Through Prosecutor Led Diversion Efforts, 79 Alb. L. Rev. 1221, 1239 (2016). The new disclosure requirement is described further below.  Public comments on the proposed rule may be submitted by April 23, 2019. This move is a departure from the approach of the previous administration.  In 2015, President Obama issued an executive order asking OPM to “take action where it can by modifying its rules to delay inquiries into criminal history until later in the hiring process” to “better ensure that applicants from all segments of society, including those with prior criminal histories, receive a fair opportunity to compete for Federal employment.”  At the time, CCRC thought this meant “at a minimum that OPM should eliminate the criminal history question on its ‘Declaration for Federal Employment’ form.”  Instead, OPM issued regulations requiring agencies not to inquiry about an applicant’s criminal or credit background in the manner asked on the “Declaration for Federal Employment” form until after a conditional offer is made (unless an exception is granted based on an agency’s need to obtain information earlier).  See 5 C.F.R. §§ 330.1300; 731.103. Under the current administration, OPM is looking to expand the “Declaration for Federal Employment” form’s criminal history question by making the following changes.  Currently, the question reads: During the last 7 years, have you been convicted, been imprisoned, been on probation, or been on parole? (Includes felonies, firearms or explosives violations, misdemeanors, and all other offenses.) If “YES,” use item 16 to provide the date, an explanation of the violation, place of occurrence, and the name and address of the police department or court involved. Under the new rule, this question would read as follows: During the last 7 years, have you: Been convicted of any crime (Include misdemeanors, felonies, firearms or explosives violations, domestic violence, alcohol, drugs, and all other crimes or offenses); Been subject to judge or court specified conditions requiring satisfactory completion before a criminal charge has been or will be dismissed; Served time in jail or prison as a result of being convicted of a crime; or Been on probation or parole? If “YES,” use item 16 to provide the date, explanation of the violation/charge, place of occurrence, and the name and address of the police and court involved. The White House and the federal personnel office did not comment regarding the reason for this change, according to Justin George of the Marshall Project.  OPM writes in its notice that the proposed change “closes a gap for those who participate in or successfully complete this type of alternative disposition and may not have to answer affirmatively to the current question and report the details of the offense.”  But closing this gap, “defeats the purpose of diversion,” as ACLU staff attorney Somil Trivedi told the Marshall Project, and potentially subverts the intention of judges and prosecutors who have specifically authorized or sought a non-conviction disposition so that a defendant may avoid the dire collateral consequences of a conviction. In addition to avoiding a conviction record, diversionary dispositions are often eligible for sealing or expungement upon successful completion of conditions, and it isn’t clear whether the OPM regulation would require disclosure of a diversionary record even in these circumstances. The proposed new OPM requirement would be flatly inconsistent with national efforts to promote rehabilitation and reintegration.  Public comments may be submitted by April 23, 2019. This is the second post in a series for our non-conviction records project, a study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred dispositions, and acquittals. Read more

NH limits denial of licenses based on criminal record

On July 2, 2018, New Hampshire’s Governor Sununu signed into law SB 589, making his state the 10th so far in 2018 to approve comprehensive limits on consideration of criminal record in occupational and professional licensing.  Like enactments earlier this year in Indiana, Kansas, Tennessee, and Wisconsin, New Hampshire’s new law is intended to ensure that people with the requisite professional qualifications will not be unfairly denied a license based on their record of arrest or conviction.  In this respect, it reflects the provisions of the Institute for Justice’s model occupational licensing act. New Hampshire’s new law, which goes into effect on August 31, authorizes individuals to seek a preliminary determination as to whether their criminal record will be disqualifying, and allows disqualification only based on a demonstrated public safety concern arising from the facts and circumstances of an individual’s situation.  It requires a board to give reasons for denial in writing, to explain what remedial measures an individual may take to address the board’s concerns, and limits the amount of the fee the board may charge to render its determination.  Finally, it requires each board to report annually on the number of licenses granted and denied to people with a criminal record.  The provisions of the new law are explained in further detail below. The law, which goes into effect on August 31, adds a new section § 332-G:13 to the New Hampshire Code titled “Petition for Review of a Criminal Record,” whose premise is that “the right of an individual to pursue an occupation is a fundamental right.”  It provides that an individual with a criminal record “may petition a board or commission at any time, including before obtaining any required education or training, for a determination of whether the individual’s criminal record will disqualify the individual from obtaining state recognition.” The petition “may include additional information about the individual’s current circumstances, including the time since the offense, completion of the criminal sentence, other evidence of rehabilitation, testimonials, employment history, and employment aspirations.” Standards for disqualification:  The new law, which is effective August 31, 2018, provides that an individual may be disqualified from licensure based on criminal record (“notwithstanding any other statute or rule”) only if the person has been convicted of a felony or violent misdemeanor, and only if the licensing board concludes that “the state has an important interest in protecting public safety that is superior to the individual’s right” to be licensed. In turn, the board may reach this conclusion only if it determines, by clear and convincing evidence at the time of the petition, that: (1)  The specific offense for which the individual was convicted is substantially related to the state’s interest; (2)  The individual, based on the nature of the specific offense for which the individual was convicted and the individual’s current circumstances . . . , is more likely to re-offend by virtue of having the license than if the individual did not have the license; and (3)  A re-offense will cause greater harm than it would if the individual did not have the license. Procedure for determination and appeal:  The board shall issue its determination within 90 days after the board or commission receives the petition.  The determination shall be in writing and include the criminal record, findings of fact, and conclusions of law.  If the board determines that the state’s interest is superior to the individual’s right, the board may may advise the individual of actions the individual may take to remedy the disqualification. The individual may submit a revised petition reflecting the completion of the remedies at any time after 90 days following the board’s judgment. In the event of a negative determination, the individual may appeal the board’s determination through the administrative procedure act.  The individual may submit a new petition to the board or commission at any time after 2 years following a final judgment on the initial petition. The board may rescind its determination at any time if the individual is convicted of an additional offense that the board determines meets the criteria for initial disqualification.  The board may charge a fee to recoup its costs not to exceed $100 for each petition. Annual reporting requirement:  The state office of professional licensure and certification shall establish an annual reporting requirement of the (a) number of applicants petitioning each board (or commission), (b) the numbers of each board’s approvals and denials, (c) the type of offenses for which each board approved or denied the petitions, and (d) other data the office determines.  The office will compile and publish annually a report on a searchable public website. Read more

Collateral Consequences in Occupational Licensing Act

We’ve noted in recent posts the numerous states that, just in the past three or four months, have enacted broad occupational licensing reforms affecting people with a criminal record.  Many of these new laws have been influenced by a model developed by the Institute for Justice (IJ), a libertarian public interest law firm that has been litigating and lobbying to reduce barriers to work for more than two decades.  In turn, states like Indiana, Kansas, Tennessee and Wisconsin have built upon IJ’s model to enact even more progressive schemes intended to ensure that people with the requisite professional qualifications will not be unfairly excluded based on a record of arrest or conviction. Now IJ has incorporated many of these progressive refinements into its original model licensing law, the Occupational Licensing Review Act (OLRA), and broken out the provisions relating to criminal records into a free-standing model act specifically directed at managing collateral consequences in the occupational licensing context, the new Collateral Consequences in Occupational Licensing Act (CCOLA). The CCOLA has the same key features as the original OLRA: It provides individuals with an opportunity to seek a preliminary determination from the licensing agency as to whether their criminal record will be disqualifying; It allows the individual to seek this determination at any time, including before investing in the required training necessary to otherwise qualify for the license, requires a written decision within 90 days, and limits what the agency may charge for this determination to $100; It limits the types of records that an agency may consider in a licensing decision to convictions of serious or violent crimes; It shifts the burden of proof to the agency to establish that a petitioner’s conviction is substantially related to the state’s interest in protecting public safety; It requires agencies to provide written reasons justifying denial of a license based on conviction in terms of public safety; and It requires each agency to publish a report annually on the number of applicants with a criminal record seeking a license, the number of approvals and denials, and the type of offenses for each type of action. In addition to these features, IJ has recently further clarified the types of criminal conduct that may be considered in licensing decisions, and specifically prohibited the use of vague criteria like “good moral character” as a basis for exclusion.   As revised, IJ’s model laws  now provide that licensing agencies may not consider non-conviction records, juvenile adjudications, non-violent misdemeanors, and most felonies and violent misdemeanors that occurred more than three years prior to seeking licensure.  See CCOLA, 100.02, Subd. 7.  Agencies may consider violent felonies and sexual offenses at any time, although even these records must still be tested against the “public safety” standard: The board may deny the petition only if it establishes by clear and convincing evidence that: 1. The individual was convicted of a felony or violent misdemeanor, not excluded by subdivision 7, which is directly, substantially and adversely related to the state’s interest in protecting public safety; and 2. The granting of state recognition will put the individual in a position where the individual is more likely than not to reoffend and cause harm. See CCOLA, 100.02, Subd 10(c). IJ’s website points out that “[m]ore than 25 percent of workers need a government-issued license to work,” so lowering barriers to licensure for people with a criminal record has important implications for efficiency and public safety.  In introducing its stand-alone CCOLA model, IJ’s website states the following: An honest living is one of the best ways to prevent those with a criminal record from re-offending. But many occupational licensing laws block or burden ex-offenders from entering regulated fields.  Numerous licensing laws have morality clauses that (1) bar automatically and permanently ex-offenders from working without any individualized review or (2) require the ex-offender to prove a negative—that the ex-offender’s past crimes will not cause him to harm customers in the future. Such provisions ironically may decrease public safety.  States with prohibitions and high burdens on entry have higher criminal recidivism. Conversely, states that have no such bars and low burdens have seen declines in recidivism, according to Professor Stephen Slivinski’s landmark study Turning Shackles into Bootstraps. IJ’s website surveys some of the key provisions of many of the recently enacted state licensing reforms.  It also very happily links to the relevant 50-state chart from the Restoration of Rights Project, which we very much appreciate! With an enrolled bill sitting on its governor’s desk for action, New Hampshire is poised to become the 10th state to enact comprehensive licensing reform in 2018.  In addition to Indiana, Kansas, Tennessee and Wisconsin, Arizona, Maryland, Massachusetts, Nebraska, and Wyoming have all just this year enacted new laws incorporating many of the features of IJ’s model law.  Illinois anticipated these states by six months when it significantly amended its licensing scheme to reflect IJ’s approach in August 2017. We were pleased to be able to work with Lee McGrath of IJ’s office in Minneapolis in developing many of the amended features of the CCOLA, which have also been folded into IJ’s broader model occupational licensing act.  We look forward to continuing to work with Lee and his colleagues in months to come.   Read more

California poised for major change in fair employment law

The California legislature has approved, and sent to the governor’s desk for signature, a bill that would dramatically expand protections for people with a criminal record under the state’s Fair Employment and Housing Act (FEHA).  Currently FEHA bars only discrimination that has a racially disparate effect.  If signed by the governor as expected, the new law will independently prohibit discrimination based on criminal record by most public and private employers, subject to FEHA’s administrative enforcement scheme. California will become only the fourth state in the country to extend the full protections of its fair employment law to individuals with a criminal record.  (The others are New York, Wisconsin, and Hawaii).  AB 1008 provides that non-conviction records may not be considered at all in any employment decision by a covered employer (one with more than five employees), and makes violation of this an unfair employment practice under FEHA.  Non-conviction records include records of convictions that have been dismissed pursuant to California’s set-aside law, and convictions that have been sealed or expunged. The bill would extend California’s existing ban-the-box law by making it an unfair emplyment practice to inquire into an applicant’s conviction record before the employer has made a conditional offer of employment.  (Existing law prohibits such inquiry only until an applicant is determined to be qualified.) The bill would require an employer who intends to deny employment solely or in part because of the applicant’s conviction history, to make an individualized assessment of whether this has “a direct and adverse relationship with the specific duties of the job.”  In making that individualized assessment, the employer must take into account (i) The nature and gravity of the offense or conduct; (ii) The time that has passed since the offense or conduct and completion of the sentence; and (iii)The nature of the job held or sought. The bill would also require an employer who makes a preliminary decision to deny employment, based on that individualized assessment, to provide the applicant written notification of the decision, and provide a variety of procedural protections thereafter. The bill also appears to restrict what information background screening companies may report insofar as they are acting as agents for a covered employer, prohibiting distribution or dissemination of nonconviction information “while conducting a conviction history background check in connection with any application for employment.”  (Like similar prohibitions on background screeners under Indiana’s expungement scheme, any new restrictions that go beyond the provisions of FCRA, as these do, may raise questions of federal preemption.) The bill exempts any position where an employer is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. We will be reporting further on this very important legislation in the days ahead. Read more