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.

Firm Highlights

Publication

OSHA Issues Long-Awaited Vaccination Rule for Large Employers

After waiting with bated breath for nearly two (2) months, employers will finally have access to OSHA’s Emergency Temporary Standard (ETS), which is scheduled for publication in the Federal Register on November 5, 2021...

News

46 Preti Flaherty Attorneys Selected by Peers for Inclusion in Best Lawyers in America 2022, Including 3 “Lawyers of the Year”

Forty-six Preti Flaherty attorneys have been named to Best Lawyers in America 2022, including four “Ones to Watch” and three “Lawyer of the Year” recipients. Inclusion in Best Lawyers in America is considered a...

Publication

Employees Who Refuse to Comply with a Mandatory Vaccination Policy are Generally Ineligible to Receive Unemployment Benefits

Following a nationwide spike in cases, hospitalizations, and deaths, an increasing number of Maine private businesses and colleges have joined the healthcare industry in requiring workers to provide proof of vaccination against COVID-19. Vaccine...

Publication

The Latest from OSHA on Mitigating and Preventing the Spread of COVID-19 at Work

On the tails of updated guidance from other agencies, the U.S. Department of Labor Occupational Safety and Health Administration ("OSHA") released new pandemic-related guidance last month. This guidance was issued on June 10, 2021...

Publication

Understanding the New COVID-19 Vaccine Mandate for Healthcare Workers

Many Maine healthcare facilities were already in the process of evaluating, drafting, and implementing mandatory vaccine policies when the Maine Department of Heath and Human Services issued an Emergency Routine Technical Rule on the...

Publication

Health Coverage Incentives for Unvaccinated Employees

Employers wrestling with COVID-19 vaccination-reluctant employees have a lot on their plates. New federal mandates may require affirmative action but even without these new rules, the real problem is how to persuade your workers...

News

U.S. News – Best Lawyers Ranks Preti Flaherty Among 2022 Best Law Firms

Preti Flaherty has been named among the 2022 Best Law Firms by the U.S. News – Best Lawyers rankings. To be eligible for ranking, a law firm must have at least one attorney named...

Publication

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...

Publication

Six Take-Aways from EEOC’s Updated COVID-19 Guidance

The U.S. Equal Employment Opportunity Commission ("EEOC") published guidance in December 2020 advising how EEO laws, including the Americans with Disabilities Act, Title VII of the Civil Rights Act, and the Genetic Information Nondiscrimination...

Publication

Not So Fast: OSHA’s ETS in Limbo While Challenges Play Out

Over the weekend, the Fifth Circuit Court of Appeals temporarily blocked the emergency mandatory vaccine and testing regulations published in place by the Occupational Safety and Health Administration (OSHA).  As of November 9, 2021...