October 13, 2021 Article

Beyond Maine’s Ban-the-Box Statute: Practical Employer Considerations

In five (5) days, Maine’s Fair Chance Employment Act goes into effect.  We originally summarized the objective and impact of that legislation in an alert posted on August 11, 2021.  Now is the appropriate time to offer employers tactical recommendations on how to ensure compliance with 26 M.R.S.A. § 600-A and advance effective decision-making in hiring.

Required Actions Now

By now, every Maine employer should have reviewed their job postings (in electronic form, on job boards and in print) and removed language stating that persons with a criminal history may not apply or will not be considered for a position.  Similarly, no employment applications should contain this language nor questions intended to compel an applicant to disclose criminal history record information.  These prohibitions apply to all Maine employers and are subject to a very limited set of exceptions which generally pertain to situations in which an employer must comply with a federal or state law, regulation or rule that imposes a requirement that would either disqualify an applicant with a criminal history or obligate an employer to conduct an initial criminal history record check. 

Legal Compliance and Effective Due Diligence

Assuming you have taken these steps, is it still possible to collect criminal history record information from a job applicant?  Of course.  Here are four (4) rules of thumb that will enable employers to ensure compliance and, perhaps, improve their hiring procedures:

  1. Limit in-person and telephone interviews only to applicants who have established that they meet the basic qualifications for the position at issue.  For example, if an applicant has not fully completed your application or if you are waiting for the applicant’s submission of additional information, do not arrange for an interview until that process has been finalized if you expect to inquire about an applicant’s criminal history during the interview.  The new statute does not prohibit these inquiries, so long as the employer has made a threshold determination that an applicant is qualified and merits further consideration.
  2. Once an applicant has been scheduled for an in-person or telephone interview, the interviewer ought to develop a written outline to serve as a guide through sensitive criminal history inquiries.  Ad-libbing is rarely effective in this context because it leads to inconsistency in data collection.  Relying on an outline enables you to be targeted, succinct and coherent. 
  3. Arrange for third-party criminal background checks, but only for applicants who have been issued a conditional job offer.  Use these formal criminal background checks as a means of verifying the accuracy of the specific information provided by an applicant during his or her interview.  If discrepancies or other issues arise, a job offer can be withdrawn.  Remember, however, that the new statute states that if an employer inquires about a prospective employee's criminal history, that person must be given the chance to explain the information and the circumstances regarding any convictions.  Employers ought to document these interactions.
  4. Be sure to maintain records all notes and records relating to an applicant’s criminal history in a secure location not accessible to persons who are not involved in the hiring process.

The Key Takeaways

Maine’s new statute is simply intended to guarantee that no person is unfairly screened out before they receive a fair chance to demonstrate their suitability for employment.  Keep in mind that your objective is to fairly evaluate an applicant’s suitability for the position at issue.  This is always a case-by-case assessment. 

Finally, in this context, some information is very relevant and some not relevant at all.   The fact that a person has been charged with a crime is never proof that he or she engaged in criminal conduct.  An arrest means only that a person was taken into police custody.  An arrest is not a finding that a person was guilty of a crime -- or that a person has done anything wrong at all. Employers should be interested only in charges and arrests that resulted in convictions.  A conviction means that a person has been found guilty of a crime by a court or that person has agreed to plead guilty to a crime.  There are many levels of crimes, including both misdemeanors and felonies.  All these considerations relate back to, and serve to inform, your determination whether a person will meet your performance expectations and add value to the organization.

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