SB 413  - AS INTRODUCED

 

2016 SESSION

16-2944

06/04

 

SENATE BILL 413

 

AN ACT relative to employment rights of persons with criminal records.

 

SPONSORS: Sen. Feltes, Dist 15; Sen. Bradley, Dist 3; Sen. D'Allesandro, Dist 20; Sen. Fuller Clark, Dist 21; Sen. Kelly, Dist 10; Sen. Watters, Dist 4; Sen. Woodburn, Dist 1; Rep. Heffron, Rock. 18; Rep. Rosenwald, Hills. 30

 

COMMITTEE: Commerce

 

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ANALYSIS

 

This bill prohibits employers from inquiring into a job applicant's criminal record during the initial employment application process.

 

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

16-2944

06/04

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Sixteen

 

AN ACT relative to employment rights of persons with criminal records.

 

Be it Enacted by the Senate and House of Representatives in General Court convened:

 

1  New Subdivision; Opportunity to Compete.  Amend RSA 275 by inserting after section 75 the following new subdivision:

Opportunity to Compete

275:76  Definitions.  In this subdivision:

I.  "Advertisement" means any circulation, mailing, posting, or any other form of publication, utilizing any media, promoting an employer or intending to alert its audience to the availability of any position of employment.

II.  "Applicant for employment" means any person an employer considers when identifying potential employees, through any means including, but not limited to, recruitment, solicitation, or seeking personal information, or any person who requests consideration for employment by an employer, or who requests information from an employer related to seeking employment, and includes any person who is currently an employee of the employer.

III.  "Criminal record" means information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, or other formal criminal charges, and any disposition arising therefrom, including acquittal, sentencing, correctional supervision, release, or conviction including, but not limited to, any sentence arising from a verdict or plea of guilty or nolo contendere, including a sentence of incarceration, a suspended sentence, a sentence of probation, or a sentence of conditional discharge.

IV.  "Employee" means a person who is hired for a wage, salary, fee, or payment to perform work for an employer, but excludes any person employed in the domestic service of any family or person at the person's home, any independent contractors, or any directors or trustees.  The term also includes interns and apprentices.

V.  "Employer" means any person, company, corporation, firm, labor organization, or association which has 5 or more employees over 20 calendar weeks and does business, employs persons, or takes applications for employment within this state, including the state or any subdivision of the state.  The term shall include job placement and referral agencies and other employment agencies, but excludes the United States or any of its departments, agencies, boards, or commissions, or any employee or agent thereof.

VI.  "Employment" means any occupation, vocation, job, or work with pay, including temporary or seasonal work, contingent work, and work through the services of a temporary or other employment agency; any form of vocational apprenticeship; or any internship.  The physical location of the prospective employment shall be in whole, or substantial part, within this state.

VII.  "Employment application" means a form, questionnaire, or similar document or collection of documents that an applicant for employment is required by an employer to complete.

VIII.  "Initial employment application process" means the period beginning when an applicant for employment first makes an inquiry to an employer about a prospective employment position or job vacancy or when an employer first makes any inquiry to an applicant for employment about a prospective employment position or job vacancy, and ending when an employer has conducted a first interview, whether in person or by any other means of an applicant for employment.

275:77  Prohibited Actions.

I.  Except as provided in RSA 275:79:

(a)  No employer shall require an applicant for employment to complete any employment application that makes any inquiries regarding an applicant's criminal record during the initial employment application process.

(b)  No employer shall make any oral or written inquiry regarding an applicant's criminal record during the initial employment application process.

II.  Notwithstanding paragraph I, if an applicant discloses any information regarding the applicant's criminal record, by voluntary oral or written disclosure, during the initial employment application process, the employer may make inquiries regarding the applicant's criminal record during the initial employment application process.

III.  Nothing in this section shall be construed to prohibit an employer from requiring an applicant for employment to complete an employment application that makes any inquiries regarding an applicant's criminal record after the initial employment application process has concluded or from making any oral or written inquiries regarding an applicant's criminal record after the initial employment application process has concluded.  This section shall not preclude an employer from refusing to hire an applicant for employment based upon the applicant's criminal record, unless the criminal record or relevant portion thereof has been expunged or erased through executive pardon, provided that such refusal is consistent with other applicable laws, rules, and regulations.

275:78  Prohibitions Relative to Employer Advertisements.  Unless otherwise permitted or required by law, an employer shall not knowingly or purposefully publish, or cause to be published, any advertisement that solicits applicants for employment where that advertisement explicitly provides that the employer will not consider any applicant who has been arrested or convicted of one or more crimes or offenses.  This section shall not apply to any advertisement that solicits applicants for a position in law enforcement, corrections, the judiciary, homeland security, or emergency management, or any other employment position where a criminal history record background check is required by law, rule, or regulation, or where an arrest or conviction by the person for one or more crimes or offenses would or may preclude the person from holding such employment as required by any law, rule, or regulation, or where any law, rule, or regulation restricts an employer's ability to engage in specified business activities based on the criminal records of its employees.  Nothing in this section shall be construed as prohibiting an employer from publishing, or causing to be published, an advertisement that contains any provision setting forth any other qualifications for employment, as permitted by law, including, but not limited to, the holding of a current and valid professional or occupational license, certificate, registration, permit, or other credential, or a minimum level of education, training, or professional, occupational, or field experience.

275:79  Exceptions to Prohibited Actions by Employers.  Nothing in RSA 275:77, I shall prohibit an employer from requiring an applicant for employment to complete an employment application that makes any inquiries regarding an applicant's criminal record during the initial employment application process or from making any oral or written inquiries regarding an applicant's criminal record during the initial employment application process if:

I.  The employment sought or being considered is for a position in law enforcement, corrections, the judiciary, homeland security, or emergency management.

II.  The employment sought or being considered is for a position where a criminal history record background check is required by law, rule, or regulation, or where an arrest or conviction by the person for one or more crimes or offenses would or may preclude the person from holding such employment as required by any law, rule, or regulation, or where any law, rule, or regulation restricts an employer's ability to engage in specified business activities based on the criminal records of its employees.

III.  The employment sought or being considered is for a position designated by the employer to be part of a program or systematic effort designed predominantly or exclusively to encourage the employment of persons who have been arrested or convicted of one or more crimes or offenses.

275:80  Employment with Local Government.

I.  The legislative body of a county or municipality shall not adopt any ordinance, resolution, law, rule, or regulation regarding criminal histories in the employment context, except for ordinances adopted to regulate municipal operations,

II.  This act shall preempt any ordinance, resolution, law, rule, or regulation adopted by the governing body of a county or municipality prior to the effective date of this act regarding criminal histories in the employment context, except for ordinances adopted to regulate municipal operations.

275:81  Remedies.  The penalties under RSA 275:82 shall be the sole remedy provided for violations of this subdivision.  Nothing in this subdivision shall be construed as creating or establishing a standard of care or duty for employers with respect to any law other than this subdivision.  Evidence that an employer has violated, or is alleged to have violated, this subdivision shall not be admissible in any legal proceeding with respect to any law or claim other than a proceeding to enforce the provisions of this subdivision.  Nothing in this subdivision shall be construed as creating, establishing, or authorizing a private cause of action by an aggrieved person against an employer who has violated, or is alleged to have violated, the provisions of this subdivision.

275:82  Penalties.  Any employer who violates this subdivision shall be liable for a civil penalty in an amount not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.

2  Effective Date.  This act shall take effect 60 days after its passage.