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Volume XI, Number 268

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Maine Limits Employers from Requesting Criminal History of Applicants Pre-Offer

Maine’s new “An Act Relating to Fair Chance in Employment” prohibits employers from requesting an applicant’s criminal history on their initial employment applications. An employer may ask about an applicant’s criminal history during an interview or once the applicant has been determined qualified for the position.

The new law was signed by Governor Janet Mills on July 6, 2021, and goes into effect October 18, 2021

There are exceptions to the prohibition. An employer may ask about criminal convictions on the application if:

  • The position is one in which any federal or state law or regulation or rule creates a mandatory or presumptive disqualification based on a conviction for one or more types of criminal offenses and the questions on the initial employee application form are limited to the types of criminal offenses creating the disqualification;

  • The employer is subject to an obligation imposed by any federal or state law or regulation or rule not to employ a person, in either one or more positions, who has been convicted of one or more types of criminal offenses and the questions on the initial employee application form are limited to the types of criminal offenses creating the obligation;

  • The employer is required by federal or state law or regulation or rule to conduct a criminal history record check for the position for which the prospective employee is applying; or

  • The employer participates in a program that encourages employment of persons with criminal convictions.

An employer also may not state, either on the application or in an advertisement, that a person with a criminal history cannot apply or will not be considered for a position. The exceptions to this rule are where federal or state law, regulation, or rule create a mandatory disqualification based on a conviction or the employer is required under federal or state law, regulation, or rule to conduct a criminal background check.

If an employer enquires about an applicant’s criminal history or an applicant’s criminal history is revealed otherwise during the process, a best practice remains: giving the candidate the opportunity to explain the conviction and the circumstances around it. An individualized assessment gives the individual the opportunity to present information (for example, about any rehabilitation) and the employer to assess a variety of factors to determine job-relatedness and whether the decision is consistent with business necessity.

Individuals or the state Department of Labor may bring a civil action for violations of this statute and the Attorney General may investigate and bring an enforcement action for complaints of employment discrimination under this new statute.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 214
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About this Author

Debra Weiss Ford, Jackson Lewis, force reductions lawyer, termination issues attorney
Office Managing Principal and Office Litigation Manager

Debra Weiss Ford is Office Managing Principal and Litigation Manager of the Portsmouth, New Hampshire, office of Jackson Lewis P.C. She has over 30 years of experience representing employers in litigation matters before the state and federal courts and administrative agencies.

Ms. Ford also represents employers before the New Hampshire Commission for Human Rights, the Maine Human Rights Commission, the Equal Employment Opportunity Commission, the New Hampshire Department of Labor, and the Massachusetts Commission Against...

(603) 559-2700
K. Joshua Scott, Jackson Lewis, Labor Litigation Lawyer, sexual orientation discrimination attorney
Associate

Joshua Scott is an Associate in the Portsmouth, New Hampshire, office of Jackson Lewis P.C. His practice covers all aspects of employment litigation, including state and federal claims and matters before administrative agencies such as the New Hampshire Commission for Human Rights, the New Hampshire Department of Labor, the Maine Human Rights Commission and the Equal Opportunity Commission.

Mr. Scott practices in both state and federal court and has handled cases involving claims of race, age, disability, sexual orientation...

603-559-2711
Samuel H. Martin Employment Litigation Attorney Jackson Lewis Portsmouth
Associate

Samuel H. Martin is an associate in the Portsmouth, New Hampshire, office of Jackson Lewis P.C. His practice encompasses all aspects of employment litigation, including state and federal claims and matters before administrative agencies.

Samuel previously practiced both commercial and employment litigation at a boutique litigation firm in Boston where he also clerked during law school. While attending law school, Samuel was a member of the Boston College Law School European Law Moot Court Team and a quarterfinalist in the...

603-559-2700
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