In the case of criminal records, it is always suggested that when looking at a conviction you take into consideration the job duties in relation to the crime. Discrimination against people with a criminal record has become a big issue for the EEOC. It is important that you avoid a blanket policy turning down an applicant just because s/he has a criminal record.

California:
Employers may not ask or consider Non-conviction matters except pending matters OR any participation in any pretrial or post-trial diversion programs. This includes a Deferred Sentence or Adjudication Withheld.

Employers may not ask or consider: 1) Certain convictions involving 28.5 grams (1 oz.) of marijuana that are more than 2 years old; and 2) Sex offender information only if the employer has people “at risk”.

Convictions can be reported for 7 years. Non-conviction information cannot be reported except for pending charges.

Colorado:
Employers shall not ask or require disclosure of sealed records and the applicant cannot be denied employment for failure to disclose sealed records.

Connecticut:
The following statement must appear on the application form: “An employer may not require an employee or applicant to disclose erased records or deny employment because of the existence of an erased record.”

Credit Report Restrictions as mentioned above. Law goes into effect October 1, 2011

Georgia:
An employer may not use a “first offender” conviction, except for employers such as:  banks, schools, day care, nursing homes and those serving the developmentally disabled.

Hawaii:
After a conditional job offer has been made in writing, an employer may inquire about an individual’s “conviction record” within the past 10 years, excluding any period of incarceration.

Credit Report Restrictions as mentioned above.

Illinois:
Employment application must state that the applicant need not disclose any expunged arrest or conviction.

Credit Report Restrictions as mentioned above.

Kentucky:
Use of arrest record with no conviction – non-convictions are not to be reported.

Maryland:
Credit Report Restrictions as mentioned above. Law goes into effect October 1, 2011

Massachusetts:
Employers may not inquire about criminal records on the initial written application form. The “initial written application” form has been interpreted by the Massachusetts Commission Against Discrimination (“MCAD”) to mean any paper provided to an applicant prior to the job interview. The MCAD noted that this new law did not prohibit oral inquiries, but oral inquiries are already restricted by MGLA 155B §4(9). This restriction has been noted above. However, these restrictions do not prohibit an employer from obtaining a criminal report at any time.

Massachusetts has one of the more complicated employer restrictions on the use of convictions. MGLA 151B §4(9) provides that an employer may not ask an employee/applicant, for employment purposes, regarding  1) an arrest, detention or disposition in which a conviction did not result;  2) a first conviction for drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace, or  3) any conviction of a misdemeanor that occurred 5 years or more from the date of the application unless there is a later conviction. This provision has been held to apply strictly to asking the applicant/employee about this information and does not prohibit the employer from seeking such information. Bynes v. School Committee of Boston, 581 N.E.2d 1019 (Mass. App. 1991); Ryan v. Chief

Administrative Justice, 779 N.E.2d 1005 (Mass. App. 2002). The restriction has little impact for the CRA. Further, the statutes general vagueness provides ample problems. In the second category above, the statute does not identify any specific crimes, and it is difficult to track any particular crime to this list. For example is a DUI “drunkenness”? Where is “affray” a crime? The third category actually would require an employer to count the times between convictions, thus requiring the review of prohibited information.

PENDING - Effective February 6, 2012: User must maintain consent for at least one year. (Such documents are advised to be kept for 6 years under FCRA). Also, user must log internal distribution of state issued criminal records.

PENDING - Effective February 6, 2012: The State will create a notice that the employer or user will be required to give to the consumer when state criminal records are sought.

Boston Municipality Restrictions
Boston Municipal Code §12-9.3 prohibits discrimination based upon “ex-offender” status. The exception to prohibition of the use of such information is if an employer shows a bona fide occupational qualification that will disqualify a person based upon this criminal record. However, an ex-offender status is limited to the following: Ex-Offender status shall mean (i) the condition of having been arrested, detained, or accused of any violation of law which no conviction resulted, or (ii) a final conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbing the peace, or (iii) any conviction of a misdemeanor where the date of such conviction or completion of any period of incarceration resulting therefrom, whichever date is later, occurred five (5) or more years prior to the date of the exercise of any right or privilege under this Chapter, unless such person has been convicted of any offense within five (5) years immediately preceding the exercise of any right or privilege under this Chapter.

This municipal ordinance basically tracks the restrictions found MGLA 151B §4(9), however the state statute only relates to the first conviction for drunkenness, simple assault, speeding, affray or disturbance of the peace. This is a slight difference in the language between the ordinance and the state’s statute that might make the Boston Ordinance more restrictive.

Michigan:
An employer may not consider an arrest for a misdemeanor that did not result in a conviction.

Minnesota:
Public employers cannot consider arrests without convictions, expunged records or misdemeanor convictions for which no confinement is authorized. However there are exceptions.

New Hampshire:
An employer may only ask an applicant: “Have you ever been arrested for or convicted of a crime that has not been annulled by a court?”

New York:
An employer may not consider non-conviction information except for pending actions.

Ohio:
An applicant may not be questioned about sealed convictions.

Oklahoma:
Employers may not inquire about sealed records and applicants may state that they have no convictions if the conviction was subsequently sealed.

Oregon:
Credit Report Restrictions as mentioned above.

Pennsylvania:
An employer may only consider felony and misdemeanor convictions to the extent that they relate to suitability of employment. If a decision is made on a past conviction, the employer must inform the applicant.

Rhode Island:
No employer, except law enforcement may ask an applicant if he has been arrested. An employer may ask about convictions.

Virginia:
An employer cannot require disclosure of any arrest or conviction that has been expunged.

Washington:
The use of arrest records for employment is considered an unfair employment practice by the Human Rights Commission. However arrests for pending charges seem to be appropriate to review.

West Virginia:
An employer may not inquire about arrests without conviction except for pending charges.