Gov. Dannel P. Malloy has signed into law Public Act No. 16-83, titled "An Act Concerning Fair Chance Employment" (the Act).
The Act is a modified "Ban the Box" law. It applies to all employers in both the public and private sectors and is effective January 1, 2017. The Act prohibits employers from inquiring about a prospective employee's prior arrests, criminal charges or convictions on an initial employment application, unless (1) the employer is required to do so by an applicable state or federal law, or (2) a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment.
A version of the Act that was initially proposed sought to prohibit employers from, among other things, inquiring about a prospective employee's criminal history until the employer made a conditional offer of employment to the applicant. The Act does not go quite this far and prohibits employers only from inquiring about a prospective employee's criminal history in an initial employment application. Nothing prohibits employers from asking about an applicant's criminal history (subject to certain restrictions discussed below) during a subsequent interview or by sending supplemental application materials after an initial screening. Additionally, the Act does not provide a private right of action. Rather, the only recourse for a prospective employee who is aggrieved by the Act is to file a complaint with the Labor Commissioner.
Although the Act technically repeals Section 31-51i of the Connecticut General Statutes, many of the requirements contained in that statute survive in the Act. Employers still may not require an employee or prospective employee to disclose a prior arrest, criminal charge or conviction if the records of such arrest, charge or conviction have been erased. Additionally, any employment application form permissible under the Act that contains any question concerning the criminal history of the applicant must contain a notice, in clear and conspicuous language, that the applicant is not required to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased or are subject to erasure under various Connecticut regulations.
Although, at this point, compliance with the Act is not onerous, it may not be the end of what is to come. The Act also establishes a "fair chance employment task force" charged with studying issues, including, but not limited to, the employment opportunities available to individuals with criminal histories. Under the Act, the task force is required to submit a report on its findings and offer recommendations on further administrative or legislative action on or before January 1, 2017. It must submit a second report, addressing the same issues, on or before January 1, 2018.
What Should Employers Do?Employers should review their employment applications and make any necessary revisions to comply with the new law prior to its effective date of January 1, 2017. Employers should also stay tuned for developments following the release of further recommendations and proposals from the task force.
Eric Sussman authored an article, "Conn. High Court Sheds Light on 'ABC' Test Application," which was published by Law360.
Francine Esposito was a featured speaker as part of a panel discussion on Privacy Issues at the 2017 Lex Mundi Labor and Employment and Employee Benefits and Pension Practice Group Global Meeting in New York.
Francine Esposito was a featured speaker in an Employment Law Alliance webinar, entitled, "Social Media and the New Workplace: Is Your Brand and Reputation Protected?"
Patrick McCarthy and Christopher Stracco are scheduled to speak on Friday, February 10, at the New Jersey Institute of Continuing Legal Education's Annual 2017 Redevelopment Law Institute at the Renaissance Woodbridge Hotel in Iselin, New Jersey.
Day Pitney Alert
James Leva was quoted in an article, "CT gets on board with e-pay cards," in The Hartford Business Journal.
James Leva was quoted in an article, "New payday option in Conn. — put it on plastic," in The Stamford Advocate.
John McLafferty was quoted in an article,"New pay equity law offers fertile ground for litigation," in Massachusetts Lawyers Weekly.
Day Pitney Press Release
Michael Furey was quoted in an article, "NJ Panel Grills Hospitals Over Discovery In Horizon Row," in Law360. Day Pitney is representing five New Jersey hospitals in a lawsuit against Horizon Healthcare, relating to its new, multi-tiered health plan called OMNIA. Furey advocated on behalf of the five hospitals on Wednesday before a New Jersey appeals court that Horizon should turn over a consultant's report and certain agreements relating to how Horizon categorized hospitals under its controversial OMNIA Alliance program and the impact of OMNIA on the hospitals. These Tier 2 hospitals are alleging various claims, including breach of contract and citing concerns that being ranked in the lower tier of the program will cost them business. Horizon contends the sought-after materials, including a financial analysis, strategic alliance agreements and rate agreements between the insurer and OMNIA network hospitals, contain trade secret and confidential information. "If we're going to prove our hospitals should be Tier 1 alliance members, we need the documents and the information," Furey said.