- Employers may not utilize an arrest or conviction record as a basis to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure terms, privileges, or conditions of employment with some exceptions as noted below.
- Employers may not take adverse action against an individual because of the individual’s criminal history unless the employer has determined that the individual is unsuitable for the job based on an individualized assessment conducted by the employer.
- Employers have additional obligations if they take adverse action against an individual because of the individual’s criminal history, including but not limited to, informing the individual of the disqualifying conviction(s) that is the basis of the decision, the reasoning of the disqualification as well as providing specific language on the adverse action notice as noted below.
Who does the Ordinance apply to?
For this Ordinance, the term “Employer” means any individual, partnership, association, corporation, limited liability company, business trust, or any person or group of persons that provides employment for one or more employees in the current or preceding calendar year, and any agent of such an entity or person.
What is required for an individualized assessment?
Employers must conduct an individualized assessment to evaluate if there is a substantial relationship between the criminal offenses and the position sought or held. The factors that must be considered include the following, at a minimum:
- Length of time since the conviction;
- Number of convictions that appear on the record;
- Nature and severity of the conviction, and relativity to safety and security of others;
- Facts and circumstances around the conviction;
- Age of the employee at the time of conviction; and
- Evidence of rehabilitative efforts.
Can an employer take adverse action based on criminal history?
Employers may not take adverse action against an individual because the individual did not provide criminal history information prior to the conditional employment offer, however, they may take adverse action provided they comply with their required responsibilities.
Employers must provide notification to the applicant or employee prior to taking adverse action, which such notice must contain the following:
- Notice of the disqualifying conviction(s) that is the basis for the preliminary decision and the employer’s reasoning for the disqualification;
- A copy of the criminal history record(s); and
- An explanation of the individual right to respond to the preliminary decision before the decision becomes final. The individual’s response may include submission of evidence challenging the accuracy of the reported criminal history that is the basis of the disqualification or evidence in mitigation, such as rehabilitation.
If an employer decides to disqualify an individual based on the individual’s criminal history after considering information submitted by the individual, as applicable, the employer must:
- Inform the individual in writing of the disqualifying criminal offense(s) or anything else in the conviction record that is the basis for the final decision and the employer’s reasoning for the disqualification;
- Any existing procedure the employer has for the applicant or employee to challenge the decision or request reconsideration; and
- The right to file a complaint with the Commission.
Are there other requirements?
Yes. We recommend all impacted employers review this Ordinance carefully to understand all their obligations. As an example, employers may not publish or cause to be published information about a job covered by this article that states or implies that an individual’s criminal history automatically disqualifies the individual from consideration for the job.
Are there any exceptions?
Yes. We recommend reviewing the Ordinance to determine if you meet any of the defined exemptions.
We recommend employers review and discuss with their legal counsel your organization’s policies and procedures to ensure continued compliance with the changing laws and regulations.
Please note: The information provided above is strictly for educational purposes. It is not intended to be legal advice, either expressed or implied. Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.