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Beware of Limits to Criminal History Inquiries in Employment Applications

In 2014, Delaware, Illinois, Nebraska and New Jersey passed new laws aimed at limiting an employer’s ability to ask questions about an applicant’s criminal history.  Employers can tack these four states onto the growing list of jurisdictions that have adopted “fair chance” laws.  Other states with similar pre-employment restrictions include, but are not limited to, California, Colorado, Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, New Mexico, Rhode Island and Wisconsin.

Of these states, Hawaii, Illinois, Massachusetts, Minnesota, Nebraska and Rhode Island have also adopted a “Ban the Box” policy, which prohibits private employers from making criminal history inquiries prior to extending a job offer.  In addition, up to 100 cities and counties throughout the United States have enacted similar laws, the most recent being Chicago and San Francisco.  Other states, such as Georgia, have pending legislation addressing fair chance policies in employment. 

To avoid any legal pitfalls related to the inclusion of criminal history inquiries in a job application, employers, both public and private, must know and understand the laws in every jurisdiction in which their workforces operate.  

Copyright © 2020 Godfrey & Kahn S.C.National Law Review, Volume V, Number 29

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About this Author

Rufino Gaytán, Labor & Employment Attorney, Godfrey Kahn Law Firm "
Associate

Rufino Gaytán is an associate member of the firm's Labor & Employment Practice Group in Milwaukee. Rufino assists private and public employers in addressing general human resource issues and counsels employers in every aspect of labor and employment law. In particular, Rufino provides assistance with discrimination claims, wage and hour issues and drafting and enforcing restrictive covenant agreements. Rufino also represents clients before the Equal Employment Opportunity Commission and the Wisconsin Equal Rights Division.

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