Earlier this year in July, Main introduced a “ban-the-box” law that introduced limits on the point at which employers can inquire into an applicant’s criminal history. This new law dubbed “An Act Relating to Fair Chance in Employment” will go into effect on Oct. 18th, 2021. This law limits but does not remove an employer’s ability to perform inquiries and consider an applicant’s criminal history leaving many employers confused at what point they are allowed to consider it. Let’s see if we can clear this up.
This ban-the-box law forbids an employer from including questions concerning criminal history on an initial employment application altogether. Criminal history is defined broadly here and includes arrests, indictments, sentences, involuntary commitments, criminal dispositions, and detentions.
Further, employers may not include statements on an initial application form or advertisements for the position that criminal history will disqualify an individual from a position. However, once an employer interviews an applicant, they may begin asking questions about criminal history, including performing background checks.
If the employer does not perform interviews, it may be somewhat vaguer. If this is the case, the employer must wait until after they have otherwise judged that an applicant is qualified for the position in question before making inquiries about criminal history.
For certain employers, there are exceptions to these new rules. First, if state or federal law would disqualify applicants with particular offenses on record from a position, then employers may include inquiries about these particular disqualifying offenses on an initial application for employment.
Additionally, if state or federal law bans an employer from hiring an individual that has been convicted of particular criminal offenses, inquiries concerning these disqualifying offenses may be included on an initial employment application. Lastly, if state or federal law or other regulations require an employer to perform a criminal background check, these rules do not apply.
Violations of these new laws will be investigated and enforced by the Maine Department of Labor. Violations may be punishable by not less than $100 and not more than $500.
Employers should begin preparing their applications and hiring procedures for these new rules to take effect on October 18th. Though the fines for violations of these new rules are relatively mild at no more than $500 per violation, this can still add up quickly and result in considerable quantities of needless and more costly litigation. For this reason, it is important to use an employment screening provider you can trust to remain up to date with the ever-changing legislation concerning the use of criminal history.