May 24, 2022

Volume XII, Number 144

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May 23, 2022

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Maine’s New ‘Ban-the-Box’ Law: When Can Employers Inquire About Criminal Histories?

In July 2021, Maine enacted a new “ban-the-box” law that limits employer inquiries into an applicant’s criminal history. Under the new law, entitled “An Act Relating to Fair Chance in Employment,” employers are prohibited from including criminal history inquiries in an application, but can engage in such inquiries during an interview or once the employer has determined that the applicant is otherwise qualified for the position.

This law goes into effect on October 18, 2021.

Inquiry Limitations

The new law prohibits an employer from requesting “criminal history record information” from an applicant on the employer’s initial employment application. Criminal history record information is defined broadly and includes, among other things, arrests, detentions, indictments, sentencing, involuntary commitments, and criminal dispositions.

An employer may, however, inquire about an applicant’s criminal history record information, including through background checks, during an interview, or after the employer has determined that the applicant is otherwise qualified for the job.

Limitations on Applications and Advertisements

Under the new law, employers may not “[s]tate on an initial employee application form or advertisement or specify prior to determining a person is otherwise qualified for the position that a person with a criminal history may not apply or will not be considered for a position.”

Exceptions

The new law has a number of exceptions to its inquiry limitations, including for:

  • positions for which federal or state law, regulations, or rules “create[] a mandatory or presumptive disqualification based on a conviction for one or more types of criminal offenses,” and the inquiries in the application are limited to those offenses giving rise to the disqualification;

  • employers subject to federal or state law, regulations, or rules that bar employment of a person in a specific position when the individual “has been convicted of one or more types of criminal offenses,” and the inquiries in the application are limited to those offenses giving rise to the disqualification; and

  • employers “required by federal or state law or regulation or rule to conduct a criminal history record check for the position” in question.

Enforcement and Penalties

Employers that are found to have violated the new law may be “subject to a penalty of not less than $100 nor more than $500 for each violation.” The Maine Department of Labor will enforce the new law.

Key Takeaway

Employers in Maine may want to begin preparing to implement updated criminal history inquiry procedures for applicants in advance of the law’s effective date of October 18, 2021.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 245
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About this Author

Gustavo Suarez, Gus, Employment Law Attorney, counseling, background checks, EEOC, Ogletree Deakins Law Firm
Of Counsel

Gustavo (“Gus”) Suárez assists employers with a broad range of employment law issues, including counseling on federal and state background check and e-signature law; investigating and defending EEOC charges; advising on immigration compliance issues (including I-9 training and internal audits); and defending Title VII, defamation, and breach of contract lawsuits against employers.

Gus regularly speaks at employment conferences on topics like background check law, I-9 compliance, and the South Carolina Illegal Immigration Reform Act.

864-271-1300
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