['Recruiting and hiring']
['Negligent Hiring / Retention']
06/13/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Rhode Island, an employer/former employer may disclose to a prospective employer, upon request of the prospective employer or the employee/former employee, information about employee/former employee job performance, unless he/she is not acting in good faith. An employer may be liable for disclosures not made in good faith. Lack of good faith may be shown if the employer/former employer discloses knowingly false or intentionally misleading information, discloses with malicious intent, or discloses in violation of the civil rights of the employee/former employee.
Blacklisting persons in order to prevent them from obtaining or keeping employment is an unfair labor practice.
Arrest record inquiries
In Rhode Island, an employer may not ask about arrests or criminal charges, except for law enforcement jobs. 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
Neither the EEOC nor Rhode Island have laws or regulations specifically prohibiting conviction record inquiries. In fact, Rhode Island General Law Section 28-5-7 states that its requirements do not prevent an employer from asking an applicant if he/she has been convicted. Additionally, an applicant whose conviction records have been expunged, may state that he/she has never been convicted, except for law enforcement, court, or child education jobs.
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
Rhode Island Department of Labor and Training
Arrest record inquiries
Rhode Island Commission for Human Rights
Conviction record inquiries
Rhode Island Commission for Human Rights
Regulations
Employer immunity from disclosure claims
Rhode Island General Law 28-6.4-1, Inspection of files
www.rilin.state.ri.us/Statutes/TITLE28/28-6.4/28-6.4-1.HTM
Rhode Island General Law 28-6.4-2, Violation – penalties
www.rilin.state.ri.us/Statutes/TITLE28/28-6.4/28-6.4-2.HTM
Rhode Island General Law 28-7-13, Unfair labor practices
www.rilin.state.ri.us/Statutes/TITLE28/28-7/28-7-13.HTM
Arrest record inquiries
Rhode Island General Law 28-5-6, Definitions
www.rilin.state.ri.us/Statutes/TITLE28/28-5/28-5-6.HTM
Rhode Island General Law 28-5-7, Unlawful employment practices
www.rilin.state.ri.us/Statutes/TITLE28/28-5/28-5-7.HTM
Rhode Island General Law 12-1.3-4, Effect of expungement of records—Access to expunged records—Wrongful disclosure
www.rilin.state.ri.us/Statutes/TITLE12/12-1.3/12-1.3-4.HTM
Conviction record inquiries
Rhode Island General Law 28-5-6, Definitions
www.rilin.state.ri.us/Statutes/TITLE28/28-5/28-5-6.HTM
Rhode Island General Law 28-5-7, Unlawful employment practices
www.rilin.state.ri.us/Statutes/TITLE28/28-5/28-5-7.HTM
Rhode Island General Law 12-1.3-4, Effect of expungement of records—Access to expunged records—Wrongful disclosure
www.rilin.state.ri.us/Statutes/TITLE12/12-1.3/12-1.3-4.HTM
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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