Articles

Criminal Background Checks Under CT Law

December, 2015

Criminal Background Checks in Connecticut Employment

The use of criminal background checks in employment hiring has prompted nineteen states, including Connecticut, as well as the federal government, to prohibit or limit such use in what has been called the “ban-the-box” policy.

For example, on November 2, 2015, President Barack Obama directed the federal Office of Personnel Management, (“OPM”), to remove from federal job application forms the check box requiring applicants for federal employment to indicate if they have a criminal history, and delay criminal history inquiries until later in the hiring process. OPM plans to propose a rule in May, 2016 prohibiting federal agencies from asking applicants about their criminal background information until they are referred to a hiring manager.

Surveys have shown that as many as 90% of employers use criminal background checks. Such policies have a disproportionate effect upon minorities. The Equal Employment Opportunities Commission, (“EEOC”), has stepped up enforcement actions based upon such use. The EEOC believes, for example, that an exclusion based upon an arrest alone would be improper.

Public policy issues are implicated by such use. Connecticut has such a public policy, codified in Conn. Gen. Stat. Section 46a-79, to encourage all employers to give favorable consideration to providing jobs to qualified individuals, including those who may have criminal conviction records.
Conn. Gen. Stat. Section 46a-80 provides that “a person shall not be disqualified from employment by the state of Connecticut or any of its agencies, nor shall a person be disqualified to practice, pursue or engage in any occupation ….for which a license, permit, certificate or registration is required…solely because of a prior conviction of a crime.”

The statute does allow some discretion based upon the nature of the crime and its relationship to the job for which the person has applied. Some allowable exceptions would include DUI convictions for driving positions, theft convictions for persons handling money and violent criminal convictions for positions with access to vulnerable populations.
Also, Connecticut employers may not require disclosure of any arrest, criminal charge or conviction, the records of which have been erased. An employer may not refuse to hire an applicant with erased records and must advise the applicant of these rights in the employment application.

Because credit reports may contain information on criminal history, the federal Fair Credit Reporting Act applies when an employer uses a “consumer reporting agency” to procure a “consumer report” to make an employment decision, including hiring, retention, promotion or reassignment. However, there are provisions in the law that employers must honor, including obtaining the employee’s written consent to the background check and not discriminating against the applicant or employee or otherwise misuse the information in violation of federal or state equal opportunity laws or regulations. Employees are provided the opportunity to dispute the accuracy or completeness of the report.