Vermont Passes ‘Ban the Box’ Legislation

On May 3, 2016, Vermont Governor Peter Shumlin signed into law a “ban the box” statute, which will take effect on July 1, 2017. The law will prohibit covered employers from inquiring about information pertaining to an individual’s criminal history record on an initial employment application. The law does, however, allow an employer to inquire about an applicant’s criminal history record (i) during a job interview or (ii) once the applicant has been deemed otherwise qualified for the position.

Definitions

The law defines a “covered employer” as any individual or company with one or more employees (or independent contractors) doing business within Vermont. “Criminal history record” includes all information relating to an individual’s contact with the criminal justice system, including data regarding identification, arrest, arraignment, judicial disposition, custody, and supervision.

Scope

Although the law generally prohibits employers from inquiring into an applicant’s criminal history record on an initial employment application, there are exceptions to this restriction. An employer may inquire about criminal convictions on an initial employee application form if one of the following two conditions are satisfied:

• the prospective employee is applying for a position for which any federal or state law or regulation creates a mandatory or presumptive disqualification based on a conviction; OR
• the employer is subject to an obligation imposed by any federal or state law or regulation not to employ an individual who has been convicted of a specific offense or offenses,

AND the questions on the application are limited to those prohibited criminal offenses.

These exceptions apply even if the federal or state law in question allows the employer to obtain a waiver that would allow the employer to hire the applicant in question.

When inquiring about an applicant’s criminal history information, an employer must afford the individual an opportunity to explain his or her criminal history information and the circumstances regarding any convictions, including postconviction rehabilitation, if the applicant is otherwise eligible for the position under federal or state law.

Enforcement

Employers that violate the provisions of the Vermont law will be assessed a civil penalty of up to $100 for each violation.

The Vermont “ban the box” law and “ban the box” laws in other jurisdictions, including all federal and state background check requirements, are summarized in Ogletree Deakins’ O-D Comply: Background Checks and O-D Comply: Employment Applications subscription materials, which are updated and provided to O-D Comply subscribers as the law changes.