['Recruiting and hiring']
['Negligent Hiring / Retention']
06/13/2024
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
Both the federal and state requirements do not cover employer immunity from disclosure claims.
Arrest record inquiries
In New Hampshire, an employer may ask about arrest records; but using the information is unlawful unless there is a justifying business necessity. In fact, employers must “scrutinize” whether it is a business necessity to require employees to have a no arrest record. It is also unlawful to use the arrest record inquiry to discourage protected groups from applying. An applicant whose arrest record has been annulled can only be questioned about the arrest if asked if they have ever been arrested for a crime that has been annulled. These applicants are not required to answer to a state public employer whether they have been arrested or indicted.
This is similar to 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
Both the EEOC and New Hampshire 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
New Hampshire Department of Labor
Arrest record inquiries
New Hampshire Commission for Human Rights
New Hampshire Department of Administrative Services Commissioner's Office
New Hampshire Department of Corrections
Conviction record inquiries
New Hampshire Commission for Human Rights
New Hampshire Department of Administrative Services Commissioner's Office
New Hampshire Department of Corrections
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
New Hampshire Revised Statute Title I, Section 21-I:51, Applicant’s Criminal Record
New Hampshire Revised Statute Title LXII, Section 651:5, Annulment of Criminal Records
New Hampshire Code of Administrative Rules Hum 405.01, Harassment Based on Race or Nation Origin
New Hampshire Code of Administrative Rules Hum 405.03, Job Requirements
Conviction record inquiries
New Hampshire Revised Statute Title I, Section 21-I:51, Applicant’s Criminal Record
New Hampshire Revised Statute Title LXII, Section 651:5, Annulment of Criminal Records
New Hampshire Code of Administrative Rules Hum 405.01, Harassment Based on Race or Nation Origin
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.