On November 10, 2018, the U.S. Virgin Islands joined the “ban-the-box” movement by enacting legislation regulating employers’ use of the criminal records of applicants and employees. Currently, 32 states and over 150 localities have enacted such laws for public employers; approximately 12 states and 17 localities have extended such laws to private-sector employers, and some jurisdictions have extended such laws to government contractors. The Virgin Islands law, Act No. 8134:
- prohibits employers from asking an applicant to disclose any information concerning: (i) an arrest or detention that did not result in a conviction; (ii) “a referral to, or participation in, any pretrial or post trial diversion program”; or (iii) “a conviction that has been judicially dismissed or ordered sealed pursuant to law.”
- prohibits employers from seeking any of these categories of information from another source.
- prohibits employers from considering any such information when making decisions about hiring, promotion, termination, or selection for any training program resulting in hiring.
- permits applicants affected by a violation of the law to recover the greater of $200 or actual damages, plus costs and attorneys’ fees.
- subjects employers that violate the law to a criminal fine of up to $500 or imprisonment of up to six months.
The law applies to public and private employers of all sizes, except if:
- “state or federal law requires the applicant to be rejected based upon criminal history”;
- the job position requires a satisfactory criminal background;
- a conviction of one or more specified offenses would disqualify the applicant from obtaining a standard bond that is required of individuals hired for the position; and
- “the employment is within a facility that provides programs, services, or direct care to minors or vulnerable adults including the educational system or child care.”
In addition to these general exceptions, the law does not prohibit an employer at a health facility, as that term is elsewhere defined under Virgin Islands law, from asking applicants for positions with regular access to patients or with access to drugs and medications to disclose arrests for violations of certain territorial laws. The law also does not cover individuals seeking employment or employed as peace officers, or applicants for positions in the Virgin Islands Department of Justice or other criminal justice agencies.
Comparison With Other State and Federal Laws
The Virgin Islands prohibition relating to arrest records is generally consistent with U.S. Equal Employment Opportunity Commission (EEOC) Enforcement Guidance No. 915.002, which adopts the position that an arrest record, by itself, is not job related and consistent with business necessity. However, whereas the EEOC Guidance provides that an employer may inquire into the conduct underlying the arrest to determine an applicant’s fitness for a particular position, the Virgin Islands law prohibits employers from inquiring into “information concerning” an arrest, which appears to include the conduct underlying the arrest. In this respect, the Virgin Islands law seemingly is stricter than the federal guidance.
The Virgin Islands law is also more restrictive than ban-the-box laws in many jurisdictions because it extends beyond the hiring process and includes promotions, selections for training programs, and decisions that affect any other conditions of employment.
On the other hand, unlike the laws in other states and localities that regulate the timing of employer inquiries about convictions, the Virgin Islands law does not prohibit or otherwise regulate inquiries about convictions that have not been ordered sealed or judicially dismissed. Therefore, in accordance with federal law and guidance, employers in the U.S. Virgin Islands may inquire about criminal convictions of record when such inquiries are job related and consistent with business necessity, taking into account the nature and gravity of the offense, the time passed since the offense, and the nature of the job held or sought. Thereafter, and before taking adverse action, the EEOC guidance advises employers that rely upon such targeted screening inquiries to provide an opportunity for an individualized assessment by notifying the applicant or employee that the employer is considering taking adverse action, providing the individual an opportunity to demonstrate that the conviction should not be disqualifying and then considering whether any additional information supplied justifies an exception to the employer’s policy.
How Can Employers Prepare?
As the law is effective immediately, employers may wish to consider taking the following measures:
- reviewing printed and online application forms to ensure that they do not seek or require disclosure of information about arrests, referrals to, or participation in, pretrial or post trial diversion programs, or convictions that have been judicially dismissed or ordered sealed pursuant to law (unless the application question is specifically tailored to a position excepted from the new law);
- revising existing personnel manuals and other internal guidance documents to conform to the new law;
- providing appropriate training to employees and any third-party agents formally or informally involved in the hiring process about their obligations under the law to avoid direct or indirect inquiries about these topics;
- providing appropriate guidance about the law to individuals involved in making employment-related decisions about current employees following an arrest and prior to conviction; and
- utilizing databases that explicitly keep a record of state, local, and territorial expungement orders of criminal proceedings.