The public policy interests supporting employment-related protections for ex-offenders, including encouraging ex-offenders to reenter the workforce, are detailed in the updated EEOC Enforcement Guidance, titled “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” released in April 2012.  And, while states like California, Massachusetts, New York and Wisconsin already extend such protections to ex-offenders, employers need to be mindful of additional new state and local laws that seek to promote these same public policy interests by restricting inquiries into and the use of criminal records for employment purposes.  For example, late last year the City of Newark, New Jersey, enacted a so-called “Ban the Box” ordinance that, with very limited exceptions, prohibits employers from inquiring about an applicant’s criminal history on an employment application, and Minnesota followed suit just last month by enacting the state’s own version of a “Ban the Box” law.  The trend continues across the country, and thus now, perhaps more than ever before, employers must stay abreast of these ex-offender protection laws and should closely monitor pending legislation at both the federal, state and local level.

On the reverse side of this issue, recognizing that employers have potential tort exposure for hiring ex-offenders, some state legislatures have taken steps to protect employers from tort claims like negligent hiring and/or retention.  One example is a new law pending in Texas. This legislation is intended to further the same public policy interests, but takes a different and more sensible approach: curbing lawsuits against employers rather than denying employers access to potentially salient information about a candidate’s criminal past.

To learn more, please see Littler's ASAP, The Flurry of New Employment Laws Regulating the Use of Criminal Records Continues with Expanded Restrictions in Indiana, North Carolina, Texas, and Buffalo, New York, by Jennifer Mora, Rod Fliegel, and Sherry Travers.