HB412 By Representatives Givan, Bracy, Moore (M), Robinson, Coleman, Grimsley, Buskey, Howard, Melton, Clarke, Bandy, Forte, Drummond, Warren, Lawrence, Knight, McClammy, Holmes (A), Hall, Todd, Daniels and England RFD State Government Rd 1 15-MAR-16

SYNOPSIS: Under existing law, there is no Alabama statute prohibiting an employer from discriminating against a job applicant based on the applicant's criminal conviction record or a licensing authority from discriminating against an applicant for a license based on the applicant's criminal conviction record.

This bill would prohibit employers from inquiring into or considering an applicant's conviction history for consideration of a job until after the applicant has received a conditional job offer, except when a conviction is directly related to the position of employment sought.

This bill would prohibit licensing authorities from inquiring into or considering an applicant's conviction history for consideration of a license until after the applicant is found to be otherwise qualified for a license, except when a conviction is directly related to the occupation for which the license is sought.

This bill would require employers to maintain certain employment and hiring records relating to the conviction history of employees and job applicants.

This bill would also authorize the Department of Labor to enforce the provisions of this act.

A BILL TO BE ENTITLED AN ACT

Relating to criminal convictions; to prohibit employers from inquiring into or considering an applicant's conviction history for consideration of a job until after the applicant has received a conditional job offer, except when a conviction is directly related to the position of employment sought; to prohibit licensing authorities from inquiring into or considering an applicant's conviction history for consideration of a license until after the applicant is found to be otherwise qualified for a license, except when a conviction is directly related to the occupation for which the license is sought; to require employers to maintain certain employment and hiring records relating to the conviction history of employees and job applicants; and to authorize the Department of Labor to enforce the provisions of this act.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. The Legislature finds and declares that reducing barriers to employment for people with arrest and conviction records and decreasing unemployment in communities with concentrated numbers of people with criminal conviction records are matters of statewide concern. The Legislature further finds and declares that increasing employment opportunities for people with records will reduce recidivism and improve economic stability in our communities.

Section 2. As used in this act, the following words shall have the following meanings:

(1) APPLICANT. Any individual considered for, or who requests to be considered for, employment or any employee considered for, or who requests to be considered for, another employment position by the employer.

(2) EMPLOYER. The state, or the agencies or political subdivisions thereof, any person in the state that employs four or more individuals, any person that is acting in the interest of an employer directly or indirectly, or any person that undertakes for compensation the procurement of employees or opportunities for employment.

(3) HIRING AUTHORITY. The person, board, commission, or department of the state, or the agencies or political subdivisions thereof, responsible by law for hiring individuals for public employment.

(4) LICENSE. A license, permit, certificate, registration, or other means required to engage in an occupation which is granted or issued by the state, or the agencies or political subdivisions thereof, before an individual may pursue, practice, or engage in any occupation.

(5) LICENSING AUTHORITY. The person, board, commission, or department of the state, or the agencies or political subdivisions thereof, responsible by law for the licensing of individuals for occupations.

(6) OCCUPATION. An occupation, trade, vocation, profession, business, or employment of any kind for which a license is required to be issued by the state, or the agencies or political subdivisions thereof.

Section 3. (a) The following criminal records may not be used, distributed, or disseminated by the state, or the agencies or political subdivisions thereof, in connection with any application for employment or in connection with an application for a license:

(1) Arrest not followed by a valid conviction.

(2) Convictions that have been sealed, dismissed, or expunged.

(3) Infractions or misdemeanor convictions for which no jail sentence may be imposed.

(b) Any information pertaining to an applicant's background check obtained in conjunction with the hiring process shall remain confidential, and may not be used, distributed, or disseminated by the state, or the agencies or political subdivisions thereof, except as otherwise required by law.

Section 4. (a) An employer or hiring authority may not inquire into or consider an applicant's conviction history until after the applicant has received a conditional offer.

(b) A licensing authority may not inquire into or consider the conviction history of an applicant for licensing until after an applicant is found to be otherwise qualified for the license.

(c) Job applications and licensing applications may not inquire into an applicant's conviction history.

Section 5. (a) An individual may not be disqualified from employment or disqualified from pursuing, practicing, or engaging in any occupation for which a license is required solely or in part because of a prior conviction, unless a conviction is directly related to the position of employment sought or to the occupation for which the license is sought. If a law explicitly requires that certain convictions are an automatic bar to employment or licensing, then those convictions shall be considered.

(b) In determining whether a conviction directly relates to the position of employment sought or the occupation for which the license is sought, the employer, hiring authority, or licensing authority shall consider:

(1) Whether the conviction is directly related to the duties and responsibilities of that employment position or occupation.

(2) Whether the position or occupation offers the opportunity for the same or a similar offense to occur.

(3) Whether circumstances leading to the conduct for which the individual was convicted will recur in the position or occupation.

(4) The length of time since the offense occurred.

Section 6. (a) Nothing in this act shall be interpreted as to create any requirement, power, or duty in conflict with any federal or state law, rule, or regulation, or with a requirement of any government agency or employer from implementing any federal or state law, rule, or regulation that may govern applicant inquiries, employment decisions, or applicant communications.

(b) Nothing in this act shall prohibit an employer from notifying applicants in writing of the specific offenses that will disqualify an applicant from employment in a particular position due to federal or state law or the employer's policy.

Section 7. The requirements set forth in this act do not apply for positions where a standard fidelity bond or an equivalent bond is required and an applicant's conviction of one or more specified offenses would disqualify the applicant from obtaining such a bond, in which case an employer may include a question or otherwise inquire whether the applicant has ever been convicted of any of those offenses.

Section 8. If the employer, hiring authority, or licensing authority intends to deny an applicant a position of employment or intends to disqualify an applicant from pursuing, practicing, or engaging in any occupation for which a license is required solely or in part because of the applicant's prior conviction, the employer, hiring authority, or licensing authority, prior to a final decision, shall provide the applicant written notification of the following:

(1) The specific conviction or convictions that are the basis for the potential denial or disqualification.

(2) A copy of the conviction history report, if any.

Section 9. (a) It shall be the policy of the state to do business only with contractors that have adopted and employ written policies, practices, and standards that are consistent with the requirements of Sections 1 to 8, inclusive, of this act.

(b) State agencies shall review all contractors' background check policies for consistency with the policies of the state as expressed in Sections 1 to 8, inclusive, of this act, and shall consider background check policies and practices among the performance criteria in evaluating a contract.

Section 10. (a) The Department of Labor shall be responsible for enforcing the provisions of this act. Any person who is aggrieved by an employer's violation of this act may contact the Department of Labor to report any problems, concerns, or suggestions regarding the implementation, compliance, and impact of the provisions of this act, and the department shall keep a record. In addition, the Department of Labor shall conduct periodic reviews to assess compliance with this act. The Department of Labor shall investigate and review complaints and maintain records detailing complaints and their disposition.

(b) An employer shall retain for a minimum of three years application forms, records of employment, and other pertinent data and records required under Sections 1 to 6, inclusive, of this act, including, but not limited to, communication with the applicant, and shall allow the Department of Labor access to such records to monitor compliance. In addition, the employer shall maintain a record of all of the following:

(1) The number of positions requiring background checks.

(2) The number of applicants for positions described in subdivision (1) who were provided a conditional offer.

(3) The number of applicants with a conviction record who were notified by the employer that the applicant's conviction record may disqualify the applicant, as provided in Section 8 of this act.

(c) Public employers shall also regularly conduct a confidential, anonymous survey of employees in public employment in which background checks are not conducted to determine the number of individuals with conviction records who are hired.

(d) An appeal, complaint, or grievance concerning a violation of the provisions of this act by a public employer shall be processed and adjudicated in accordance with established state procedures.

(e) The Department of Labor shall conduct an audit to review the state's hiring practices in an effort to ensure that people with records are not unreasonably denied employment with the state.

(f) For violations that occur before January 1, 2018, the Department of Labor shall issue a written warning to the employer that includes a notice regarding the possible penalties for such a violation.

(g) For violations that occur on or after January 1, 2018, the Department of Labor may issue a fine of up to one thousand dollars ($1,000) for a first violation of Sections 1 to 6, inclusive, of this act and provide counseling to the private employer to ensure future compliance. Subsequent violations are subject to fines of up to two thousand dollars ($2,000) per violation. In addition, an individual may bring a civil action in any court of competent jurisdiction against the employer or other person violating a provision of Sections 1 to 6, inclusive, of this act, and upon prevailing, shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation, including, but not limited to, damages, injunctive relief, and reasonable attorneys' fees and costs. If an employer does not maintain or retain adequate records documenting compliance or does not allow the Department of Labor reasonable access to such records, it shall be presumed that the employer did not comply with this act, absent clear and convincing evidence indicating otherwise.

Section 11. The provisions of this act shall prevail over any other laws or rules which purport to govern the granting, denial, renewal, suspension, or revocation of a license or the initiation, suspension, or termination of employment on the grounds of conviction of an offense. Nothing in this act may be construed to otherwise affect relevant proceedings involving the granting, denial, renewal, suspension, or revocation of a license or the initiation, suspension, or termination of employment.

Section 12. This act shall become effective January 1, 2017.

Employment

Employers

Crimes and Offenses

Labor

Labor Department