By Eric J. Uhl / July 12, 2021

On July 6, 2021, Governor Mills signed into law LD 1167, “An Act Relating to Fair Chance in Employment.” In doing so, Maine joins several other states that prohibit criminal history inquiries to some extent. In summary, under the new law, employers are prohibited from (1) requesting criminal history record information from applicants on the employer’s initial employee application form, and (2) stating–on the initial application form, in an advertisement, or otherwise prior to determining if an applicant is qualified for the position—that an applicant with a criminal history will not be considered for a position.

Under the new law, “criminal history record information” means information in a record about an individual as collected by or kept in the custody of a criminal justice agency, and includes, but is not limited to, information regarding summonses and arrests, detention, bail, criminal charges and indictments, any convictions or dispositions from such charges, warrants, pardons, and other criminal history information.

The new law also specifies when an employer is permitted to ask about an applicant’s criminal history. An employer may ask an applicant about criminal history record information during an interview or after the employer has determined that the applicant otherwise is qualified for the position. If an employer asks about an applicant’s criminal history, the employer must permit the applicant to explain the information and circumstances regarding any convictions.

In addition, an employer may ask about criminal convictions on an initial application form or otherwise state that applicant with a criminal history will not be considered if: (1) federal or state law creates a mandatory or presumptive disqualification based on certain criminal convictions, or (2) federal or state law imposes an obligation on the employer to refrain from hiring a person with certain criminal convictions.

The new law provides for a penalty of not less than $100 or more than $500 for each violation. The new law becomes effective 90 days after the end of the current legislative session.

Employers should immediately work with legal counsel to review their application forms and applicable policies and practices for compliance. Please contact us if you have any questions.


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