This summer, Governor Janet Mills signed LD 1167, “An Act Relating to Fair Chance in Employment,” adding Maine to the list of states that regulate the use of criminal background checks in hiring.

The law contains three key provisions related to employee hiring:

• First, employers may not request an applicant’s criminal history record information on the employer’s initial job application forms.

 

• Second, employers may not state that a person with a criminal history may not apply or will not be considered for a position during the hiring process, whether on the application form or otherwise.

 

• Finally, if an employer does inquire about an applicant’s criminal history record information after the initial application, such as during an interview, an applicant must be given an opportunity to explain the circumstances of any convictions prior to the employer making a final hiring decision.

The statute defines “Criminal History Record Information” broadly and includes such information as arrests, confinement, bail, formal charges/indictments, pending criminal proceedings, convictions, and sentences.  Certain positions, primarily those subject to federal and state background check requirements or criminal history qualifications, are exempted from the requirements of the statute.

Maine’s new statute provides broader protection for criminal history information than many neighboring states.  Accordingly, employers are advised to review their handling of criminal background information during hiring prior to the law taking effect on October 18, 2021.  As always, treating similar applicants in a similar manner is important, including with regard to how employers assess and respond to criminal background information.  This topic provides fertile ground for potential discrimination claims.

For nearly sixty years, The Bennett Law Firm has been a leader on how to stay ahead of changes in policy.  For questions or for more information on this issue, please contact Peter Bennett (pbennett@charlesc48.sg-host.com) or Rick Finberg (rfinberg@charlesc48.sg-host.com) of The Bennett Law Firm.