Executive Summary
Overview: Vermont has enacted a statute prohibiting most employers from requesting criminal record information on an initial application. Instead, employers must wait until either the interview or until the prospective employee has been deemed otherwise qualified for the position before inquiring about the individual’s criminal background. Also, please be reminded that clients taking advantage of ADP Screening and Selection Services should use the most recent version of the Background Check Consent Form, which is available on FormSource in the pre-employment section.
Effective Date: July 1, 2017.
Coverage: All employers with employees working in Vermont.
Action Required:
- Review job applications and advertisements to remove impermissible questions and/or language about an applicant’s criminal history; and
- Establish a protocol for obtaining and considering criminal history information (including any explanations provided by an affected applicant or prospective employee), performing individualized assessments of that; and ensure that you are using the latest version of the Background Check Consent Form.
The Details
Vermont’s ban the box law prohibits most Vermont employers from requesting criminal record information on an initial employee application for employment. For purposes of the new law, an employer is broadly defined as “any individual, organization, or governmental body, including any partnership, association, trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail, motor, water, air or express company doing business in or operating within this state, and any agent of such employer, which has one or more individuals performing services for it within th[e] state.” A covered employee or prospective employee is similarly broadly defined as “every person who may be permitted, required or directed by an employer, in consideration of direct or indirect gain or profit, to perform services.” The statute’s language is arguably broad enough to bring even an independent contractor relationship under its coverage. It remains to be seen whether the law will be interpreted to provide for the same.
Employers must wait until either the interview or until the candidate for employment has been deemed otherwise qualified for the position before making any criminal background inquiries. The law does not address whether its prohibitions are limited to questions presented to applicants about their criminal history or whether it more broadly prevents employers from ordering an applicant’s criminal history as part of a background check before an interview or before the applicant has been deemed qualified for the position sought. It does; however, provide three limited exceptions to its prohibition. Specifically, employers may only ask about criminal convictions on an initial employment application if the following conditions are met:
- The prospective employee is applying for a position for which any federal or state law or regulation creates a mandatory or presumptive disqualification based on a conviction for one or more types of criminal offenses; or
- The employer or an affiliate of the employer is subject to an obligation imposed by any federal or state law or regulation not to employ an individual, in either one or more positions, who has been convicted of one or more types of criminal offenses; and
- The questions on the application form are limited to the types of criminal offenses creating the disqualification or obligation.
These exceptions will likely apply to a limited number of employers notwithstanding the law’s broad application.
If an employer asks a candidate for employment about his/her criminal background, the employer must afford the candidate the opportunity to explain the circumstances surrounding any conviction that it learns about and any post-conviction rehabilitation in which the candidate may have engaged or participated. The employer’s obligation in this regard, is triggered only if the candidate is otherwise eligible for the position under applicable state or federal law.
The statute imposes no criminal penalty or private right of action. However, employers who violate any provision of the law will be subject to a $100.00 fine for each violation.
As always, please contact your Human Resources Business partner if you have any questions.
This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice.