Connecticut Broadens Protections for Applicants and Employees with Criminal Histories

     In order to make it easier for individuals with prior criminal records to find work and avoid discrimination, Connecticut’s Clean Slate Act expands current protections and widens avenues of relief.  Public Act 21-32

     More specifically, effective 1/1/23, the new law streamlined the process for erasing some criminal records, made certain employer actions a violation of the Connecticut Fair Employment Practices Act (CFEPA), and permitted applicants and employees to bring certain alleged violations directly to the Connecticut Commission on Human Rights and Opportunities (CHRO) or the Superior Court, instead of the Connecticut Department of Labor.

     Generally, misdemeanors will be erased 7 years after the date of conviction, while many  Class D and E felonies carrying a term of imprisonment of not more than 5 years will be erased after 10 years. Various youthful offenses will continue to be erased as they have in the past. More serious crimes, and motor vehicle related criminal histories, will not be subject to erasure.

     Under the new provisions of Conn. Gen. Stat. §31-51i, employers with one or more employees cannot inquire about a prospective employee's prior arrests, criminal charges or convictions on an initial employment application, unless (1) the employer is required to do so by an applicable state or federal law, or (2) a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment. Further such employers may not require an employee or prospective employee to disclose the existence of any “erased criminal history record information.”  

     “Erased criminal history record information” is defined as (A) criminal history record information that has been erased pursuant to section 54-142a of the general statutes, as amended by this act, or section 54-76o of the general statutes, or any other provision of the general statutes or other operation of law; (B) information relating to persons granted youthful offender status pursuant to section 46b-146 of the general statutes; and (C) continuances of a criminal case that are more than thirteen months old.

     Although initial employment applications may not contain questions regarding arrests, charges or convictions, except as permitted above, if an application or other document is completed later in the employment process, the employer can ask about criminal history, but any such document must contain a notice, in clear and conspicuous language, as follows:

     (1) The applicant is not required to disclose the existence of any erased criminal history record information (2) that erased criminal history record information are records pertaining to a finding of delinquency or that a child was a member of a family with service needs, an adjudication as a youthful offender, a criminal charge that has been dismissed or nolled, a criminal charge for which the person has been found not guilty or a conviction for which the person received an absolute pardon, or criminal records that are erased pursuant to statute or by other operation of law, and (3) that any person with erased criminal history record information shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.

     The law also prevents an employer from denying employment to a prospective employee solely on the basis that the prospective employee has erased criminal history record information or that the prospective employee had a prior conviction for which the prospective employee has received a provisional pardon or certificate of rehabilitation pursuant to section 54-130a, or a certificate of rehabilitation pursuant to section 54-108f.

     In addition, no employer can discharge, or discriminate against any employee solely on the basis that the employee has erased criminal history record information or that the employee had, prior to being employed by such employer, a prior conviction for which the employee has received a provisional pardon or certificate of rehabilitation pursuant to section 54-130a, or a certificate of rehabilitation pursuant to section 54-108f.

     All employment records containing criminal history information may only be made available to members of the HR department, or the persons in charge of employment, including those involved in the interview process.

     Further, consumer reporting agencies who do background checks for employers must make sure the data they supply reflects the erasure requirements by updating its records and deleting any erased records not later than 30 days after receipt of information that a record has been erased.

     The new law now permits certain violations of 31-51i to be covered as a discriminatory employment practice under the CFEPA, and those complaints must now be brought to the CHRO or the Superior Court instead of to the Connecticut Department of Labor.

     Employer actions such as unlawfully asking about criminal arrests, charges, or convictions on an initial employment application; failing to include the required non-disclosure statement on an employment application; failing to hire an applicant, or discharging or discriminating against an employee based on erased criminal history record information, a pardoned crime, or a crime in which a certificate of rehabilitation was issued will now violate the CFEPA.

     The CT DOL shall continue to investigate unlawful employer actions such as a disclosure of erased criminal history record information, disclosures of criminal records outside of HR or managers with a right to know, and consumer reporting agency violations.

     To comply with the new law employers should review their employment applications and make sure they do not include criminal history questions if used as the initial fact gathering document. If used later in the process, the application must include the required non-disclosure statement. EEO policies should also include the new protected class of “individuals with erased criminal history records, pardons, or certificates of rehabilitation.”