Summary of L.D. 1167 – An Act Relating to Fair Chance in Employment

L.D. 1167 – An Act Relating to Fair Chance in Employment, often referred to as the “ban the box” bill, was passed into law on July 6, 2021. The law takes effect on October 18, 2021.

In essence, the law restricts Maine employers from inquiring about criminal history or indicating that criminal history is a disqualifying factor on initial job application forms or in any advertisement for job openings.

However, the law does permit employers to inquire about an applicant’s criminal history during an interview or “once the prospective employee has been determined otherwise qualified for the position.” Employers who opt to inquire about an applicant’s criminal history in accordance with the law must afford the applicant an opportunity to explain the information and circumstances relating to any conviction, including any post-conviction rehabilitation.

Who does this apply to?

The law applies to any person or entity in Maine who employs individuals, including municipalities and political subdivisions, with limited exceptions. The law only excludes employers of the legislative, executive or judicial branch of State Government or quasi-independent state entities or public instrumentalities of the State.

Additionally, the law will not apply to application forms and job postings that are subject to federal or state laws or regulations that restrict employers from hiring individuals who have committed certain types of crimes or who have committed one or more criminal offenses. However, under such circumstances, employers may only inquire about the specific types of criminal offenses that make the applicant presumptively disqualified or obligates the employer not to hire the applicant. For example, if a position is subject to a federal or state law that presumptively disqualifies any individual who has been convicted of a crime of dishonesty, the employer may only inquire about crimes of dishonesty on the application or indicate that individuals who have been convicted are crimes of dishonesty may not apply.

What information are we restricted from asking about on employment applications?

Employment applications and advertisements should not inquire about criminal history, which by definition includes, but is not limited to: summonses and arrests; detention; bail; formal criminal charges; involuntary commitment; sentencing alternatives imposed; release and discharge from involuntary commitment; and any related pretrial and post-trial appeals. 

What are the penalties for failing to comply?

Employers who violate this law after October 18, 2021 may be fined a penalty of $100 to $500 for each violation.

What does this mean for Maine employers? 

Employers should review all application forms and advertisements as soon as possible for any inquiries or references to criminal history. Employers should remove any such inquiries or references prior to October 18, 2021, unless the employer is required by federal or state laws or regulations to exclude applicants based on criminal history.

If employers intend to ask questions about criminal history during the interview or after determining that an applicant is otherwise qualified for the position, those employers should establish consistent practices and policies for making those inquiries. Further, employers should document any discussion about criminal history and ensure that applicants have sufficient opportunity to explain any circumstances or rehabilitation relating to their criminal history. Further, employers should be cautious not to make disability related inquiries without a legitimate business purpose in the event that an applicant discloses information about a conviction that relates to a disability, such as a substance abuse disorder. Note that the Department of Labor may implement rules and guidance relating to this law and this information may be subject to change.

For additional information or assistance, please contact Matt Raynes, Sarah Newell, or Katherine Porter in our Labor & Employment practice group.