Maine Limits Employer Inquiries Into Job Applicants’ Criminal History

Employers in the Pine Tree State are now forbidden to ask candidates about their criminal history on initial job applications.

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Young male worker being interviewed for a job by a women.

Under a new law that goes into effect on Oct. 18, 2021, employers in Maine cannot ask job applicants about their criminal history on the initial job application. However, under “An Act Relating to Fair Chance in Employment,” employers can ask about an applicant’s criminal history during the interview or after the applicant has been found to be qualified for the job.

If an employer asks an applicant about their criminal history, then that employer must provide the job seeker with an opportunity to explain the circumstances regarding convictions — including post-conviction rehabilitation, according to the state law.

Additionally, employers cannot state on the application form or in a job ad that they will not consider those with a criminal history for a position.

The state statute notes that the definition of employer includes “municipalities and political subdivisions of the State but does not include an employer of an individual who holds a position in the legislative, executive or judicial branch of State Government or a position with a quasi-independent state entity or public instrumentality of the State.”

Employers in Maine cannot ask job applicants about their criminal history on the initial job application.

Maine “Ban the Box” rule exceptions

The prohibition on pre-hire inquiries doesn’t apply in certain circumstances. Employers may ask about criminal convictions on the initial employee application form or advertise that those with criminal histories should not apply if the:

  • Position is one for which a federal or state law, 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; or
  • Employer is subject to an obligation imposed by a federal or state law or regulation or rule not to employ a person who has been convicted of certain criminal offenses and the questions on the initial employee application form are limited to the types of criminal offenses creating the obligation; or
  • 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.

Individuals can bring a civil action for violations of the state statute. Violations of the law are subject to fines ranging from $100 to $500 for each violation. Maine’s Department of Labor will enforce the law.

“Ban the Box” facts

Janet Mills, Democratic Governor of Maine, signed the employer prohibition against pre-hire inquiries into law on July 6, 2021.

Maine has had a law against inquiries about criminal history on applications for jobs in state government since 2019.

The term “Ban the Box” refers to the box on job applications that job seekers must check if they have a criminal record. The National Conference of State Legislatures has estimated that as of 2018, nearly 1 in 3 adults or about 70 million people, have arrest or criminal records.

Proponents say “Ban the Box” laws make it easier for ex-offenders to obtain jobs.

Federal “Ban the Box” law

There is no federal law that prevents most private employers from asking about prior criminal history. However, as of December 2021, federal agencies and private employers with federal contracts will be prohibited from requesting criminal history information from candidates until they have made a job offer under the “The Fair Chance to Compete for Jobs Act of 2019” that was a part of the 2019 defense spending bill.

The Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing federal laws dealing with workplace discrimination, has recommended in a guidance that employers not ask about convictions on job applications and that such inquiries be limited to convictions for which exclusion would be related to the job and consistent with business necessity.

The EEOC has also warned in the guidance that use of an individual’s criminal history can, in some instances, violate Title VII of the Civil Rights Act of 1964’s prohibition against employment discrimination.

City and state “Ban the Box” laws

As of July 2021, 36 states have approved “Ban the Box” laws for public employers.

Over the past several years, a number of cities and states have gone further than the feds and enacted laws that prevent or limit employer inquiries into a job applicant’s criminal history. As of July 2021, 36 states have approved “Ban the Box” laws for public employers, according to Employment Screening Resources — a Novato, CA.-based company that performs employee background checks.

ESR has also noted that 15 states — California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington — and the District of Columbia have “banned the box” for private employers. Here are some states’ regulations:

  • Maryland’s “ban the box” law forbids all employers with 15 or more full-time employees from asking job applicants to disclose criminal records or criminal accusations before the first in-person interview. It went into effect in February 2020 after state lawmakers overrode a governor veto.
  • A Virginia law that decriminalized simple possession of marijuana and also contained a “ban the box” provision prohibiting employers from requiring job applicants to disclose information concerning criminal charges, arrests, or convictions for simple possession of marijuana went into effect on July 1, 2020.
  • Hawaii amended its “ban the box” law in September 2020, reducing the number of years that employers can go back in considering criminal convictions.
  • California expanded the definition of “applicant” under its “Fair Chance Act” in October 2020 to include individuals who begin work upon receiving a conditional offer of employment but before the employer has conducted or completed a criminal background check. The Golden State law was reportedly amended because of the delay some employers have been encountering in obtaining criminal history information because of the COVID-19 pandemic.
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