['Recruiting and hiring']
['Negligent Hiring / Retention']
06/11/2024
Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
...
SEARCH
Summary of differences between federal and state regulations
Employer immunity from disclosure claims
Upon request of a former, discharged employee, an employer must provide the former employee with a written statement of reasons for discharge, within a reasonable time period after the request. If an employer fails to do so, it is a crime to send a statement of reasons for discharge to any person (other than a court) or blacklist the former employee to prevent him/her from obtaining employment.
An employer may not prevent or attempt to prevent a former, discharged employee from obtaining employment; however, an employer may inform a prospective employer of the true reason for discharge.
Arrest record inquiries
In Montana, an employer may not ask about arrests. This is more stringent than the EEOC’s Notice N-915-061, which 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 Montana, an employer may ask about criminal convictions. This is less stringent than the EEOC’s Notice N-915, which 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
Montana Department of Labor and Industry
Arrest record inquiries
Conviction record inquiries
Regulations
Employer immunity from disclosure claims
Montana Code 39-2-801, Employee to be furnished on demand with reason for discharge
http://leg.mt.gov/bills/mca/39/2/39-2-801.htm
Montana Code 39-2-802, Protection of discharged employees
http://leg.mt.gov/bills/mca/39/2/39-2-802.htm
Arrest record inquiries
Montana Admin. 24.9.1406, Pre-employment inquiries
http://www.mtrules.org/gateway/ruleno.asp?rn=24.9.1406
Conviction record inquiries
Montana Admin. R24.9.1406, Pre-employment inquiries
http://www.mtrules.org/gateway/ruleno.asp?rn=24.9.1406
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)."
READ MORESHOW LESS
['Recruiting and hiring']
['Negligent Hiring / Retention']
Load More
J. J. Keller is the trusted source for DOT / Transportation, OSHA / Workplace Safety, Human Resources, Construction Safety and Hazmat / Hazardous Materials regulation compliance products and services. J. J. Keller helps you increase safety awareness, reduce risk, follow best practices, improve safety training, and stay current with changing regulations.
Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.