Effective January 1, 2014, a new law in Rhode Island will ban employers from inquiring on job applications about the criminal histories of applicants. Under the new law, most employers will have to wait until at least the first job interview to ask about convictions. Rhode Island law previously only prohibited inquiries into arrests or charges. On July 16, 2013, Governor Lincoln Chafee signed into law an amendment to the Rhode Island Fair Employment Practices Act. The amendment, at R.I.G.L. § 28-5-7(7), makes it an unlawful employment practice “[f]or any employer to include on any application for employment . . . a question inquiring or to otherwise inquire either orally or in writing whether the applicant has ever been arrested, charged with or convicted of any crime,” subject to limited exceptions.
The law applies to both public and private employers of four or more individuals, as well as any person acting in the interest of an employer, either directly or indirectly. It prevents covered employers from asking about arrests, charges, and now convictions prior to the job interview stage of hiring. The law defines a “conviction” as any verdict or finding of guilt, or any pleas of guilty or nolo contendere, to a criminal charge.
The law provides two exceptions: (i) where state or federal law disqualifies an applicant from employment due to certain criminal histories; or (ii) where a standard fidelity bond is required for the position, and the applicant’s criminal convictions would disqualify him or her from obtaining the bond. Nothing in the new law, however, precludes employers from asking about criminal histories at or after a first interview, provided such inquiries otherwise comply with other state and federal laws. Further, the law does not apply to some religious employers and some law enforcement positions.
Complainants may file a charge with the Rhode Island Commission for Human Rights or a civil action for violations of the new law, and complainants may be entitled to monetary damages, injunctive relief, and attorneys’ fees and costs.
So-called “ban-the-box” laws have already been enacted in Hawaii, Massachusetts, and Minnesota, as well as some localities within other states. Proponents of these laws argue that they provide job opportunities for those individuals who may have otherwise been initially excluded by employers on the basis of their criminal background.
Practical Tips for Employers
The new Rhode Island “ban-the-box” law and the growing number of similar regulations across the country emphasize the need for employers to ensure that their hiring practices comply with the changing state and local regulations. Employers should update their applications as appropriate and train human resources personnel and hiring managers on how to properly obtain criminal background information in the hiring process. Employers should be equally mindful of guidance from the Equal Employment Opportunity Commission (EEOC) on the use of criminal histories to screen job applications.
In particular, Rhode Island employers must ensure that by January 1, 2014, they no longer ask about criminal history on their job applications or in person prior to a first interview. Except under narrow exceptions, only at the interview or thereafter may a Rhode Island employer ask about an applicant’s criminal background.