['Recruiting and hiring']
['Negligent Hiring / Retention']
04/26/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Maine, a former employer may disclose to a prospective employer information about former employee job performance or work record, unless he/she is not acting in good faith. A former employer may be liable for disclosures not made in good faith. Lack of good faith may be shown if the former employer maliciously intended to disclose information that is knowingly false or misleading.
Upon request of an former employee, an employer must give the former employee a written statement of the reasons for termination within 15 days of request.
Maintaining a blacklist or participating in maintaining a blacklist in order to prevent any person from obtaining employment in his/her trade is a crime. It is also a crime for any employer/employee who alone or with others uses threats, intimidation, or force to prevent someone from obtaining or keeping employment. Agricultural employers may not blacklist an employee to prevent him/her from obtaining employment.
Arrest record inquiries
Both the EEOC and Maine have no laws or regulations specifically prohibiting arrest record inquiries. However, the EEOC’s Notice N-915-061 says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
In Maine, liquor retailers may not hire someone who has been convicted of selling liquor to minors or without a license within two years for the first offense or within five years for the second offense.
In Maine, licensing agencies may consider criminal history records pertaining to certain convictions listed in Maine Revised Statute Section 5301, but only if the agency determines that the applicant or holder has not been rehabilitated enough to be granted public trust.
Both the EEOC and Maine have no laws or regulations specifically prohibiting conviction record inquiries. However, the EEOC’s Notice N-915 says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964 in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
Arrest record inquiries
Conviction record inquiries
Regulations
Employer immunity from disclosure claims
Maine Revised Statute Title 26, Chapter 7, Section 598, Employment reference immunity
http://www.mainelegislature.org/legis/statutes/26/title26sec598.html
Maine Revised Statute Title 26, Chapter 7, Section 630, Written statement of reason for termination of employment
http://www.mainelegislature.org/legis/statutes/26/title26sec630.html
Maine Revised Statute Title 17, Chapter 17, Section 401, Definition; penalty
http://www.mainelegislature.org/legis/statutes/17/title17sec401.html
Arrest record inquiries
Maine Revised Statute Title 5, Chapter 341, Section 5301, Eligibility for occupational license or permit
http://www.mainelegislature.org/legis/statutes/5/title5sec5301.html
Maine Revised Statute Title 5, Chapter 341, Section 5302, Denial, suspension, revocation or other discipline of licenses because of criminal record
http://www.mainelegislature.org/legis/statutes/5/title5sec5302.html
Maine Revised Statute Title 5, Chapter 341, Section 5303, Time limit on consideration of prior criminal conviction
http://www.mainelegislature.org/legis/statutes/5/title5sec5303.html
Maine Revised Statute Title 5, Chapter 341, Section 5304, Appeals
http://www.mainelegislature.org/legis/statutes/5/title5sec5304.html
Maine Revised Statute Title 28-A, Subpart 1, Chapter 29, Section 703-A, Prohibition of employment of violators as retail employees
http://www.mainelegislature.org/legis/statutes/28-A/title28-Asec703-A.html
Conviction record inquiries
Maine Revised Statute Title 5, Chapter 341, Section 5301, Eligibility for occupational license or permit
http://www.mainelegislature.org/legis/statutes/5/title5sec5301.html
Maine Revised Statute Title 5, Chapter 341, Section 5302, Denial, suspension, revocation or other discipline of licenses because of criminal record
http://www.mainelegislature.org/legis/statutes/5/title5sec5302.html
Maine Revised Statute Title 5, Chapter 341, Section 5303, Time limit on consideration of prior criminal conviction
http://www.mainelegislature.org/legis/statutes/5/title5sec5303.html
Maine Revised Statute Title 5, Chapter 341, Section 5304, Appeals
http://www.mainelegislature.org/legis/statutes/5/title5sec5304.html
Maine Revised Statute Title 28-A, Subpart 1, Chapter 29, Section 703-A, Prohibition of employment of violators as retail employees
http://www.mainelegislature.org/legis/statutes/28-A/title28-Asec703-A.html
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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