U.S. Virgin Islands Enacts Fair Chance for Employment Act

Quick Hits

• Employers may not inquire about an applicant’s conviction history before the applicant is determined to be otherwise qualified for a position, except when required by local and federal law.
• Employers are barred from asking, seeking from any source, or using as a factor in determining any condition of employment information regarding an applicant’s criminal record until the applicant has been given a conditional offer of employment.
• In the absence of a specific statute that would prevent an applicant from qualifying for a job, employers may neither state nor imply in advertisements that persons with a criminal background cannot apply.

The Fair Chance for Employment Act

The act contains certain exceptions for employers at a health facility, for persons seeking employment as peace officers, and for persons seeking employment for positions in the U.S. Virgin Islands Department of Justice or other criminal justice agencies. However, the act does not apply if:

• “[l]ocal or federal law requires an applicant to be rejected based upon criminal history”;
• a satisfactory background check is an established bona fide occupational qualification for a group of employees;
• a criminal offense would disqualify an applicant from obtaining a standard fidelity or equivalent bond required for the position; or
• “[t]he employment is within a facility that provides programs, services, or direct care to minors or vulnerable adults, including the educational system or childcare.”

In addition to the restrictions on the ability to make inquiries prior to extending a conditional offer of employment, the act specifies that an employer must consider “[w]hether the criminal offense charge relates to the responsibilities of the position for which the person has applied,” and an employer must consider “[a]ny documentation or information demonstrating the rehabilitation of the applicant” before rescinding a conditional offer of employment for an applicant who has pending charges filed within the last six months, or has been convicted of a misdemeanor in the past three years or of a felony in the past five years.

Application Forms

Application forms must include the following statement:

“A record of conviction will not exclude an applicant from being eligible for the position. Factors that may be examined include:

(1) The rational relationship of the nature of the offense to the duties and responsibilities of the position; and

(2) Evidence of the rehabilitation of the applicant.”

Restrictions and Consequences for Noncompliance

As with a now-repealed law that only addressed arrest records, the act specifies that “[i]t is unlawful for a peace officer or employee of a law enforcement agency with access to criminal offender record information,” or “any other person authorized by law to receive criminal offender record information … to knowingly disclose” that information. The law also makes it “unlawful for any person who knows he is not authorized by law to receive or possess a criminal record or history of conviction” to receive or possess that information.

Similarly, the act incorporates the same penalty structure as the now-repealed law that only addressed arrest records. Specifically, it provides that employers that violate the law may be subject to an action by the applicant to recover the actual damages or $200, whichever is greater, plus costs and reasonable attorney’s fees. Employers also may be subject to imprisonment not to exceed six months or a fine not to exceed $500 or both for violations of the law. These penalties are in addition to any other remedies available to the applicant under any other law.

Implications for Employers

The purpose of the act is to prevent discrimination against individuals with certain criminal histories. The act states that thirty-five states, the District of Columbia, and 150 cities and counties have adopted similar laws. At the same time, the act repeals an existing provision that provides that employers could not “seek from any source whatsoever, or use, as a factor in determining any condition of employment” including termination of employment, “any record of arrest or detention that did not result in conviction.” The act also states that it does not “prohibit[] an employer from asking an applicant orally or in writing about an arrest for which the applicant is out on bail or his own recognizance.”

Next Steps

Employers in the Virgin Islands may want to review their current background check practices and assess the extent to which the Fair Chance for Employment Act impacts their hiring practices. Employers may also want to update their job application forms as well as their job postings to ensure that they comply with this new law.

Ogletree Deakins’ Background Checks Practice Group and St. Thomas office will continue to monitor developments and will provide updates on the Background Checks and U.S. Virgin Islands blogs.

Further information on the requirements of federal, state, and major localities’ background check laws in the United States is available to subscribers via the Ogletree Deakins Client Portal in the updated law summaries related to Background Checks.

For additional information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com or contact backgroundchecks@ogletree.com.

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