['Recruiting and hiring']
['Negligent Hiring / Retention']
07/17/2024
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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
Both EEOC and Vermont have no laws or regulations specifically prohibiting arrest record inquiries. However, 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 Vermont, an employer may request criminal conviction records from the Vermont Crime Information Center or out-of-state crime information centers, on an applicant/volunteer only if:
- The employer obtains authorization from the applicant on a Center release form,
- The employer signs and files an agreement with the Center,
- The applicant has been offered employment or a volunteer has been offered a position, conditional to a check of the criminal records,
- The employer provides a free copy of the criminal conviction record to the applicant/volunteer within 10 days of receiving the record,
- The employer confidentially keeps the criminal conviction records for three years, and
- The applicant is not required to obtain or provide a criminal conviction record for employment purposes.
This differs from 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 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
Vermont Department of Labor and Industry
Arrest record inquiries
Vermont Attorney General’s Office, Vermont Civil Rights Unit
Conviction record inquiries
Vermont Attorney General’s Office, Vermont Civil Rights Unit
State regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None.
Conviction record inquiries
20 V.S.A. 2056c, Dissemination of criminal history records to employers
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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