Montgomery County, Maryland “Bans the Box” for Rentals

The Montgomery County Council unanimously passed the Housing Justice Act (effective date TBD), a bill that prevents landlords from denying potential tenants housing based on certain crimes, such as marijuana possession.

The new law prohibits a landlord from:

  • raising a stated rent in certain circumstances;
  • requiring a rental application to contain certain information about record checks conducted by a housing provider;
  • making certain inquiries regarding criminal histories in rental housing applications; and
  • considering certain arrests and convictions in rental housing decisions.

Specifically with regard to prohibiting inquiries into criminal histories, landlords are prohibited from conducting a criminal record check of a prospective tenant until after a conditional offer of housing has been made. Landlords also are prohibited from inquiring into, or making housing decisions based upon, certain arrests or misdemeanors. However, a landlord may inquire into and consider a prospective tenant’s sex offender registry status, as well as any sex offense arrests or convictions.

Any landlord who denies housing based upon an applicant’s criminal background must inform the applicant in writing and give him or her 7 days in which to provide additional information.

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At Hire Image, we understand ongoing compliance in the face of constantly shifting laws and regulations. Please contact us if you need any assistance in reviewing your policies and procedures. For more information about Ban the Box and other laws that may affect you in your state, please visit our Resource Library.

Illinois Amends Human Rights Act Regarding Criminal Convictions

Illinois recently amended the Illinois Human Rights Act, with significant impacts to Illinois employers. The amendment, which went into effect on March 23, 2021, provides that it is a civil rights violation for any employer to use a conviction record as a basis “to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment.”

To consider an individual’s criminal conviction, an employer must first determine if there is a substantial relationship between the conviction and the position sought. There are two standards to do so. The first is “a consideration of whether the employment position offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.” An employer may also meet a different standard in considering if there is a substantial relation to the record and “the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”

If an employer makes a preliminary determination not to hire the individual based on a criminal record, the employer must provide a preliminary notice, or pre-adverse action notice, to the applicant that includes all of the following (1) notice of the disqualifying conviction and the employer’s reasoning for the disqualification, (2) a copy of the conviction report, if any, and (3) an explanation of the employee’s right to respond to the employer’s preliminary decision before it becomes final. The employee must be given at least 5 business days to respond to the notification before the employer may make a final decision.

Employers must engage in an interactive process before taking an adverse job action, and consider information provided by the individual about why the conviction should not be considered. An employer can only decide not to hire the individual based on the criminal record if they conclude that the substantial relationship test or alternative test is passed and after considering the additional information provided by the individual.

If after the interactive process and review of the information the employer decides not to hire the employee, additional written FCRA adverse notices must be provided. They must also contain the following:

  • the disqualifying conviction(s),
  • any procedure for the challenge or reconsideration of the decision, and,
  • the individual’s right to file a charge with the Illinois Department of Human Rights.

Chicago has had the adverse action procedure to include the disqualifying offense in the adverse action letter since 2015. This part of the adverse action process is now statewide, in addition to the other state requirements.

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At Hire Image, we understand ongoing compliance in the face of constantly shifting laws and regulations. Please contact us if you need any assistance in reviewing your policies and procedures. For more information about Ban the Box and other laws that may affect you in your state, please visit our Resource Library.

FedEx Sued for Alleged Violations of New York City Fair Chance Act

A lawsuit was recently filed against FedEx by a job applicant, alleging that FedEx violated New York City’s Fair Chance Act (FCA) “when it checked his criminal history before deciding whether to offer him a job.”

When he applied for the job, the applicant consented to a background check (and does not dispute his criminal record), but never heard back from FedEx after they sent him a copy of the results.

Under the FCA, “companies are prohibited from considering or inquiring about the criminal history of applicants until after they extend conditional job offers.”

The lawsuit states, “The Fair Chance Act was enacted to protect individuals with criminal convictions against irrational discrimination in employment and thus facilitate their reentry into society. Defendants’ policy of discriminating against individuals with conviction histories frustrates these public policy objectives.” Only once an offer is made may the company ask about a criminal history. Additionally, even if the applicant does, in fact, have a criminal history, the company may not revoke the job offer unless the past incident has a “direct relationship” to the position at issue.

FedEx  issued the following statement in response to the lawsuit: “FedEx Ground is committed to complying with all laws that apply to our operations in New York.”

New York City employers, like FedEx, continue to struggle with the challenges the FCA presents, especially with regard to the stringent revisions that significantly expand protections for applicants and employees with criminal backgrounds, including convictions, charges, and arrests. While there is a general consensus in securing fairness for all applicants, employers are questioning where the fairness is for them.

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At Hire Image, we understand ongoing compliance in the face of shifting laws, regulations, and the cases that interpret them. Please contact us if you need any assistance in reviewing your policies and procedures. For more information about Ban the Box and other laws that may affect you in your state, please visit our Resource Library.

 

Lakeland, Florida Implements Ban the Box

Effective February 1, 2021: The City of Lakeland, Florida is required to remove questions about prior criminal records of job applicants from City employment applications. According to the city’s news release, “the questions about criminal history will be removed from the City’s initial hiring process and potential job candidates that may have a criminal offense in their background will not be judged at the time of submitting their application.”

Lakeland now uses one application that eliminates questions related to criminal background for all positions outside of the public safety sector.  Public safety now has applications specific to the police and fire departments.

Other cities in Florida with Ban the Box laws include Tampa, Orlando, Gainesville, Jacksonville, Tallahassee, and Sarasota.

For more information about Ban the Box and other laws that may affect you in your state, please visit our Resource Library.

Are the new NYC Fair Chance Amendments Fair to Employers?

In addition to all of the challenges employers are currently facing, New York City employers must now also prepare themselves for some recent amendments to New York City’s Fair Chance Act (“FCA”).

Since 2015,  the FCA has prohibited employers from certain activities with regard to a candidate’s criminal history, including inquiring into that criminal history until after a conditional offer of employment was made. Recently, the New York City Council made revisions to the FCA to significantly expand protections for applicants and employees with criminal backgrounds, including convictions, charges, and arrests. The FCA amendments go into effect on July 29, 2021.

Below are some notable ways the FCA Amendments will impact employers:

  • Employers cannot withdraw a conditional offer of employment or take an adverse employment action unless:
  1. there is a direct relationship between the alleged wrongdoing that is the subject of a pending arrest or criminal accusation and the employment sought or held; or
  2. the granting or continuation of the employment would involve an unreasonable risk to property, safety, or welfare of specific individuals or the general public.
    • Under current law, a conditional offer may be withdrawn if there is a “relationship between a prior conviction and the job being sought.”
  • Employers must conduct individualized assessments with “relevant fair chance factors” they must consider if they wish to take adverse action against an applicant or employee due to a pending arrest, criminal accusation, or conviction.
  • Employers must now request information from the candidate for each criminal assessment factor established by New York Corrections Law (Article 23-A).
  • Employers must now provide five business days (instead of three) for candidates to respond to the employer’s Article 23-A assessment before taking adverse action.
  • Employers may not make any inquiries or deny employment on the basis of non-criminal offenses.
  • If a current employee is convicted of a criminal charge, he or she is now afforded the same review and assessment process as an applicant. There can be no adverse action against the employee unless the employer determines after reviewing the “relevant fair chance factors,” that there is a direct relationship between the conviction and the employment or that continuing employment would involve an unreasonable risk to property or the safety or welfare of individuals or the general public.
    • This previously applied only to job applicants.
  • Employers may not make any inquiries or deny employment on the basis of non-pending arrests and criminal accusations, adjournments in contemplation of dismissal, youthful offender adjudications, and sealed convictions.
  • Independent contractors and freelancers are now also covered under the FCA.
  • Employers may take adverse action, following the necessary steps (provide the applicant with a copy of the documents that formed the basis of the determination that an intentional misrepresentation was made and give the applicant a “reasonable” time to respond), against an applicant or employee who made misrepresentations about an arrest or conviction.

 

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At Hire Image, we understand ongoing compliance in the face of constantly shifting laws and regulations. Please contact us if you need any assistance in reviewing your policies and procedures. For more information about Ban the Box and other laws that may affect you in your state, please visit our Resource Library.

 

Montgomery County, Maryland Expands its Ban the Box Law

Effective February 19, 2021: Montgomery County, Maryland’s Ban the Box law (enacted in 2014) has been amended to expand the scope of the law by prohibiting background checks until after a conditional job offer has been extended, preventing inquiries about certain crimes, and redefining “employer” to include any employer (not as previously limited to those with 15 or more employees), except employers that provide services to minors or vulnerable adults.

Specifically, the amendments state that an employer must not, at any time before the extension of a conditional employment offer to the applicant:

(1) require the applicant to disclose whether he or she has an arrest or conviction record, or otherwise has been accused of a crime;

(2) conduct a criminal record check on the applicant; or

(3) inquire of the applicant or others about whether he or she has an arrest or conviction record or otherwise has been accused of a crime.

The amendments also prohibit inquiry into certain criminal records, including arrests that did not result in convictions or certain first convictions, including, among others, a conviction of a misdemeanor if at least three years have passed  since the date of conviction and the date incarceration ended.

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For more information about Ban the Box and other laws that may affect you in your state, please visit our Resource Library.