Now that Massachusetts has barred its employers from asking job applicants about salary information (https://malegislature.gov/Bills/189/House/H4509 ), and Connecticut has joined the “Ban the Box” trend (prohibiting employers from asking applicants about arrests and convictions in an initial job application), and since many businesses still do not understand either the federal Fair Credit Reporting Act’s requirements or Connecticut’s employment credit check laws, this is a good time to recap some of the Do’s and Don’ts of the employment application process. So, here are some highlights.
- DO check all references carefully before hiring any employee.
- DO have all applicants sign a release/waiver form that releases all persons from liability for providing honest references to you.
- DO have a release/waiver form for your company relating to the use of information gleaned during the application process, including information about criminal misconduct, theft and other violations of law.
- DON’T ask a job applicant about physical or mental disabilities at the application stage, before a conditional offer of employment is made.
- DO ask an applicant whether “there is anything that could prevent you from performing this job?”
- DO have available detailed job descriptions that explain the physical, educational, and other requirements of the job.
- DON’T inquire about salary history if you are in Massachusetts.
- DO ask about salary expectations.
- DO have the applicant sign a Drug Testing Consent Form if the position requires a drug test.
- DON’T (in Connecticut) make inquiries into the applicant’s credit history unless your business or the position is exempt from Public Act No. 11‐223.
- DO adhere to the Fair Credit Reporting Act if you are permitted to make inquiries into the applicant’s credit history, which means making all necessary disclosures and providing all mandated forms at the time the application is provided.
- DON’T discriminate against the applicant on the basis of a protected characteristic such as age or disability, unless there is a “bona fide occupational qualification” for the position that permits you to do so (e.g., the State of Connecticut can refuse to appoint a person over 70 to a position as a judge).
Why do we make these specific recommendations? Because of the following Connecticut and federal laws governing employment background checks:
Connecticut’s Fair Chance Employment Legislation
In 2016, the Connecticut General Assembly passed the Connecticut Fair Chance Employment Act, Public Act No. 16-83. This law prohibits employers from inquiring about a prospective employee’s prior arrests, criminal charges or convictions on an initial employment application unless (1) the employer is required to do so by an applicable state or federal law, or (2) a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment. Known affectionately (to some) as the “ban the box” law (the “box” is the application question with the check-box regarding prior arrests/convictions), the statute takes effect on January 1, 2017. The law does not prohibit employers from inquiring about a prospective employee’s criminal history after the employer makes a conditional offer of employment to the applicant.
If an application form contains a question concerning the criminal history of an applicant — either because it applies to a position that is an exception to the law or it is post-conditional job offer — it must contain a notice in clear and conspicuous language as follows:
The Applicant is not required to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased pursuant to section 46b-146, 54-76o or 54-142a, (2) criminal records subject to erasure pursuant to section 46b-146, 54-76o or 54-142a are records pertaining to a finding of delinquency or that a child was a member of a family with service needs, an adjudication as a youthful offender, a criminal charge that has been dismissed or nolled, a criminal charge for which the person has been found not guilty or a conviction for which the person received an absolute pardon, and (3) that any person whose criminal records have been erased pursuant to section 46b-146, 54-76o or 54-142a shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.
Federal Fair Credit Reporting Act
The federal Fair Credit Reporting Act (15 U.S.C. § 1681 (“FCRA”)) has extensive disclosure requirements and limits on the use of employment applicant’s credit histories and reports. The law was enacted to promote the accuracy, fairness, and privacy of consumer information contained in the files of consumer reporting agencies. It was intended to protect consumers from the willful and/or negligent inclusion of inaccurate information in their credit reports. To that end, the FCRA regulates the collection, dissemination, and use of consumer information, including consumer credit information, by all entities that collect such information – including employers.
The law requires very specific disclosures to be made at the time an employee submits an application for employment. Applicants must be provided with notice of their rights, and if a negative employment decision is made based on the applicant’s credit history, the applicant must also be informed of his/her rights in relation to that decision. The disclosures are numerous and lengthy and required to conform to specific federal mandates. In a nutshell, employers using consumer reports, including credit histories, to screen job applicants, must follow specific procedures, including:
- Get written permission from the applicant to perform the credit check;
- Tell applicants how the employer will use the credit report;
- Not misuse the applicant’s information;
- Give the applicant a copy of the credit report if the employer decides not to hire (or fires) the applicant; and,
- Give the applicant an opportunity to dispute the information contained within the credit report before making a final adverse decision.
The FCRA is enforced by the US Federal Trade Commission, the Consumer Financial Protection Bureau, and through private litigation.
Connecticut’s Law Preventing the Use of Credit Scores by Certain Employers in Hiring Decisions
Connecticut has its own credit history inquiry prohibitions relating to employment applications and employees. Public Act No. 11-223 prohibits employers’ inquiries into job applicants’ (or employees’) credit histories unless the position applied for is of a financial or fiduciary nature. The exceptions to the law are as follows:
- The employer is a financial institution, as defined under the law;
- The report is required by law;
- The employer reasonably believes the employee has engaged in specific activity that constitutes a violation of the law related to the employee’s employment; or
- The report is substantially related to the employee’s current or potential job or the employer has a bona fide purpose for requesting or using information in the credit report that is substantially job-related and is disclosed in writing to the employee or applicant.
Under the fourth exception, the report is “substantially related to the employee’s current or potential job” and the inquiry is permitted if the position:
- Is a managerial position that involves setting the direction or control of a business, division, unit or an agency of a business;
- Involves access to customers’, employees’ or the employer’s personal or financial information, other than information customarily provided in a retail transaction;
- Involves a fiduciary responsibility to the employer, as defined in the law;
- Provides an expense account or corporate debit or credit card;
- Provides access to certain confidential or proprietary business information, as defined in the law; or
- Involves access to the employer’s nonfinancial assets valued at $2,500.00 or more.
Employees and prospective employees may file a complaint with the state Labor Commissioner for an alleged violation of the law. The Commissioner may issue a civil fine of $300 for each credit check that violates the law.
Drug Testing Laws
If an employer wishes to drug test prospective employees at the time of application, it must comply with C.G.S. Sec. 31-51v, which provides as follows:
No employer may require a prospective employee to submit to a urinalysis drug test as part of the application procedure for employment with such employer unless
(1) the prospective employee is informed in writing at the time of application of the employer’s intent to conduct such a drug test,
(2) such test is conducted in accordance with the requirements of subdivisions (1) and (2) of subsection (a) of section 31-51u and
(3) the prospective employee is given a copy of any positive urinalysis drug test result.
The results of any such test shall be confidential and shall not be disclosed by the employer or its employees to any person other than any such employee to whom such disclosure is necessary.
Additionally, the law provides that employers may not drug test applicants who have worked for the employer within the last 12 months before any reapplication.
There are exceptions to the testing restrictions if “(1) such test is authorized under federal law, (2) the employee serves in an occupation which has been designated as a high-risk or safety-sensitive occupation pursuant to regulations adopted by the Labor Commissioner pursuant to chapter 54, or (3) the urinalysis is conducted as part of an employee assistance program sponsored or authorized by the employer in which the employee voluntarily participates.”
The Americans with Disabilities Act prohibits employers from making specific inquiries into a job applicant’s disability at the time of application. While general questions relating to an applicant’s ability to perform the job are permitted, specific questions regarding an applicant’s disabilities and/or need for reasonable accommodations cannot be made until after a conditional offer of employment has been made to the applicant. Similarly, a medical examination may only be required after a conditional offer has been made.
Inquiries into Various Protected Matters
The Equal Employment Opportunity Commission has issued guidelines on prohibitions against inquiries into numerous protected matters including, but not limited to, age (unless age is a bona fide occupational qualification), marital status, sexual orientation, religion and other matters. These inquiries are viewed by the EEOC as attempts to discover information with a discriminatory animus that is prohibited. Exceptions include the right to ensure that an applicant is of a legal age to work, legal age to perform the job (e.g., bartending), and able to perform the essential functions of the job.
The EEOC states that “as a general rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job; whereas, information regarding race, sex, national origin, age, and religion are irrelevant in such determinations.”
The EEOC frowns upon pre-employment inquiries that “relate to, or disproportionately screen out members based on race, color, sex, national origin, religion, or age, such inquiries may be used as evidence of an employer’s intent to discriminate unless the questions asked can be justified by some business purpose.”
Therefore, inquiries about organizations, clubs, societies, and lodges of which an applicant may be a member, or any other questions which may indicate the applicant’s race, sex, national origin, disability status, age, religion, color or ancestry if answered, should generally be avoided. Similarly, the EEOC states that employers should not ask for a photograph of an applicant. If needed for identification purposes, a photograph may be obtained after an offer of employment is made and accepted.
The EEOC may scrutinize pre-employment inquiries into the following subjects:
Height & Weight
Religious Affiliation or Beliefs
Marital Status, Number of Children
Medical Questions & Examinations
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