Recommendation: States should prohibit public and private employers from inquiring about, or using any type of arrest record or charge not leading to conviction as a basis to deny access to a job. Arrests that did not lead to conviction should not be used as a basis for refusing to hire, promote, select for training or apprenticeship, segregate, discharge or discipline a job applicant or employee.

Best practices: Several states prohibit pre-employment inquiries and consideration of arrest information. For example, New York does not allow employers to ask about any arrest or criminal accusation that was terminated in the applicant’s favor, N.Y. EXEC. LAW § 296(16). Rhode Island forbids any employment application questions pertaining to whether the applicant has ever been arrested or charged with a crime, R.I. GEN. LAWS § 28-5-7(7).

Recommendation: States should prohibit across-the-board employment bans based on conviction records. Employers should not be permitted to exclude an applicant based solely on his or her conviction record. Rather, they should be required to make individualized determinations assessing whether a person’s conviction history is directly related to the position or license being sought and with respect to trustworthiness to perform the job in question and the safety of co-workers and the public. Other factors that should be taken into consideration include the nature of the conviction(s), the time that has elapsed since the conviction(s) and evidence of rehabilitation.

Best practices: Several states forbid employers from having flat bans against hiring a person with a conviction record. New York, Kansas and Hawaii are among the 17 states that require public and/or private employers to make individual determinations. In order to justify excluding an applicant on the basis of a criminal conviction, New York requires employers to consider eight factors in its determination in addition to determining job-relatedness or if the individual poses a direct threat to public safety or property, N.Y. Correct. Law §§ 752-753. Kansas requires that the conviction be reasonably related to the applicant’s trustworthiness or the safety or well-being of employees or customers, KAN. STAT. ANN. § 22-4710(f). Similarly, Hawaii allows employers to consider only rationally related criminal convictions that occurred within the past 10 years and only after a conditional offer of employment has been made, HAW. REV. STAT. § 378-2.5. In 2009, Minnesota passed a state law to “Ban the Box,” which requires public employers to wait until a job applicant has been selected for an interview before asking about criminal records or conducting a criminal record check, Minn. Stat. § 364.021.

Recommendation: States should support the employment of qualified people with criminal records by providing a way for these individuals to demonstrate rehabilitation and lift statutory bars to jobs or licenses that result from a conviction history. States should advise people with criminal records that certificates are available and should streamline the application process.

Best practices: States have adopted programs that allow eligible individuals to obtain certificates that serve as evidence of rehabilitation. In New York for example, two types of certificates are available that remove occupational and licensing bars resulting from a conviction and create a presumption of rehabilitation, N.Y. CORRECT. LAW §§ 700-7031. In New Jersey, the Parole Board may grant certificates of good conduct to assist a qualified person’s rehabilitation by precluding licensing authorities from disqualifying or discriminating against an applicant based on a criminal conviction, N.J. ADMIN. CODE tit. 10A, §§ 70-8.1 et seq. California offers certificates that provide evidence of rehabilitation to people convicted of felony offenses, CA. PENAL §§ 4852.01(a)-(d) and 4852.17. Other states that offer opportunities for people with criminal records to obtain restoration of civil rights/certificates of rehabilitation for employment or occupational licensing purposes are Alabama, Arizona, Connecticut, Hawaii, Illinois, and Iowa.

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