Regional Regulations: The Northeast 8 Jan 2018

A background check is a vital part of pre-hire employee screening. Do you know your background check laws by state? They vary depending on the state and region where your business is located, but there are common threads as well.

Ban the Box legislation is a nationwide fair hiring initiative that aims to level the playing field by removing the conviction history question on the job application form and delaying background checks until later in the hiring process. The idea is to let the employer get to know an applicant before finding out his or her criminal history.

But not all Ban the Box laws are the same. States and cities have tweaked the law a bit. Some require only private employers to ban the box; some require it of all employers.

There are also rules about the types of criminal information that can be grounds for not hiring an applicant or terminating an employee. In some states, employers must consider the conviction through the lens of whether it’s related to the job. In others, that lens includes the amount of time that has passed since the conviction, whether it was committed when the applicant was a juvenile, and other factors.

Legislation also exists about running credit checks on applicants and employees, and that varies from state to state as well. Some states prohibit it unless knowing an applicant’s credit score is directly relevant to the job he or she is applying for — a bank teller, for instance. Others have rules about whether bankruptcies can be considered.

Knowing the spirit of these laws about background and credit checks isn’t enough. Employers must know the specifics of the laws in their state.

Here’s your guide to background and credit check laws in the Northeast region of the U.S.

Connecticut

• Ban the box: Employers may not inquire into an applicant’s criminal history on the job application form.
• Full disclosure: Conn.Gen.Stat31-51i(h)(2) states that consumer reporting agencies running reports on applicants must notify the applicant and send him or her a copy of the report.
• Prohibited information: Under Public Act No. 11-223, employers may not run credit reports unless the applicant’s credit history is relevant to the job.

Massachusetts

• Ban the box: Employers may not inquire about an applicant’s criminal history on the application form.
• Denial because of credit: Section 62 Denial of credit or employment is about notification. Employers may run credit checks, but if an applicant is denied employment because of bad credit, the employer must notify the applicant of the decision, and also his or her rights, in writing, within 10 days.
• Prohibited information: M.G.L. Chapter 93, Section 52 deals with the time of an applicant’s criminal conviction. Criminal records that are more than seven years old and bankruptcies that are more than 14 years old may not be considered in employment decisions.
• CORI: 803 CMR 2.15 concerns internal policies about background checks. Employers that perform five or more background checks per year must have a policy in place for how they deal with and act on the information they find.
• Pay equity: An Act to Establish Pay Equity bans employers from asking about applicants’ past wages.

New Hampshire

• Prohibited information: 359-B:5 prohibits reporting on criminal records that are more than seven years old.

New York

• Ban the box: Employers are prohibited from asking applicants to disclose any juvenile arrest that resulted in a Youthful Offender Adjudication or was processed as a Juvenile Delinquency proceeding, and any sealed conviction. Also, candidates who are not offered employment after a background check must be told why, in a written statement, within 30 days.
• Prohibited information: New York State Consolidated Laws Article 25 Section 380-j says that background checks can only include criminal information that is older than seven years, and bankruptcy info older than 14 years if: there is a credit transaction involving $50,000 or more, a life insurance policy of $50,000 or more, or if the applicant’s salary will be $25,000 or more.
• Unfair discrimination: New York Correction Law 752 states that employers may not discriminate against an applicant who has been convicted of a crime, unless the position is directly related to the crime or if the applicant could endanger the people or property he or she comes in contact with.
• Factors to be considered: N.Y. COR LAW 753 states that employers must consider the public policy of the state, the position itself, the age of the applicant when the crime was committed, how long ago the crime occurred, any rehabilitation, and the safety and welfare of co-workers and the public.
• More criminal history legislation: N.Y. COR LAW 754 states that if an applicant is denied employment or licensure because of criminal history, he or she has 30 days to request a written statement explaining the reason for the denial.
• Stop Credit Discrimination in Employment Act: N.Y.C. 8-107(24) states employers in New York City cannot run an applicant’s credit when making an employment decision unless the position falls under an exception.
• Salary history: Intro 1253 makes it unlawful for an employer to inquire about a job applicant’s salary history to determine what salary he or she will be paid for the position applied for.

Pennsylvania

• Ban the box: The Fair Chance Hiring Law, which prohibits asking applicants about criminal history on a job application, applies only to public-sector jobs.
• Fair practices ordinance amendment: Phil. Code Chapter 9-1100 et seq prohibits employers from running credit checks on applicants unless it’s directly related to his or her position.
• Types of crimes that may be considered: 18 Pa. Cons. Stat. Ann. 9125 says felonies and misdemeanor convictions may be considered for employment decisions, but summary offenses may not.

Vermont

• Ban the box: All employers in Vermont must adhere to ban-the-box laws and need to wait until the applicant is a serious candidate for the job before running a criminal background check.
• Consent: According to 21 V.S.A. 4951(d)(1)(3), each time an employer pulls an employee’s credit report, it must get a new consent, and cannot require the employee to pay for the report.
• Credit considerations: Under 21 V.S.A. 495i, employers can’t run credit reports unless the candidate is a first responder or the job relates directly to finance. If they can run such reports, they cannot use them as the only deciding factor in hiring.

At Trusted Employees, we’ll keep an eye on any changes to background laws in the Northeast region, so you can rest easy that you’re in compliance with the law.