August 11, 2021

New Maine Law Limits Employers’ Ability to Request Applicant Criminal History Information

Last month Governor Mills signed into law LD 1167, “An Act Relating to Fair Chance in Employment.” Maine joins a growing number of states in adopting a “ban-the-box” law that restricts employers’ ability to ask job applicants about their criminal history. Earlier this year a similar bill was introduced in the U.S. House of Representatives. The proposed federal legislation would create a compliance deadline for private-sector employers to remove questions requiring job candidates to disclose criminal history from employment applications. The purpose of these laws is to provide job applicants who have criminal records a better chance at competing for employment opportunities.  Maine previously had no restrictions that prevented private employers from asking questions about a job applicant’s criminal background.

Maine’s Requirements

Maine’s new law prohibits employers from: (1) requesting an applicant’s criminal history on an initial employment application; and (2) stating on the application or in an advertisement that a person with a criminal history cannot apply or will not be considered for a position. Criminal history is defined in the statute to include information regarding summonses and arrests, detentions, bail, criminal charges and indictments, convictions or dispositions, warrants, and pardons.

An employer may, however, ask about an applicant’s criminal history during an interview or once the applicant has been deemed qualified for the position. If an employer asks about an applicant’s criminal history, the applicant must be permitted to explain the circumstances surrounding any convictions, including post-conviction rehabilitation.

There are exceptions to these prohibitions and employers may ask about criminal convictions on an initial job application if:

  • Federal or state laws, regulations, or rules create a mandatory or presumptive disqualification for the position based on certain criminal convictions; or
  • Federal or state laws, regulations, or rules impose an obligation on the employer to refrain from hiring a person with certain criminal convictions; and
  • Questions on an initial application form are limited to the types of criminal offenses creating the disqualification or obligation.

What Employers Should Know:

The new law goes into effect on October 18, 2021. Ahead of this deadline, employers should review employment application forms, advertisements, and interviewing practices. Modifications and training may be necessary to ensure compliance with the new requirements.  Employers who do not comply with the new law are subject to a penalty of $100-$500 per violation.

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