Bill Would Limit Use of Criminal Histories for Delaware Employers

So-called “ban-the-box” initiatives, which limit employers’ inquiries into an applicant’s criminal history, have been adopted by several cities and municipalities.  Philadelphia adopted such a law in the Spring of 2011.  The City of Wilmington joined the ban-the-box bandwagon in Fall 2012, when then-Mayor Baker signed an executive order that removed a question about criminal convictions from job applications.  But that executive order applied only to applicants seeking work with the City of Wilmington.  Other Delaware employers have not been subject to these restrictions.

A bill is pending in the Delaware legislature, though, would change that and more if passed.

H.B. 167 proposes to limit when public employers and government contractors may inquire about or consider the criminal background or credit history.   The employer would not be permitted to ask about this information until “after it has determined that the applicant is otherwise qualified and has conditionally offered the applicant the position.”  Thus, a covered employer would be prohibited from asking about criminal or credit history until at least the first interview-no more checkboxes on job application.

The bill also proposes to limit the specific types of information that can be requested. Covered employers would be permitted to ask only about: (a) felony convictions in the past 10 years; and (b) misdemeanor convictions in the past 5 years.

This means that questions about arrests would be totally off limits-both on applications and in in-person interviews.

Finally, the bill proposes to limit how the information that the employer obtains will impact the hiring decision.  The bill basically adopts a scaled-down version of the EEOC’s multi-factor analysis whereby employers would be required to consider the nature of the crime and its relationship to the position sought, how much time has passed, etc. 

Oddly, the bill offers no specific limits on the use of credit history information other than timing.  In other words, the bill prohibits covered employers from obtaining a credit report for the candidate until a conditional offer has been made.

Even for private-sector employers who do no business with the State or any State agency, the use of background checks as part of the screening process continues to warrant consideration.  Particularly since the laws around the country are still developing, employers should weigh the benefits of this checks against the risks.  (See 5 Reasons Why Criminal Background Checks Are a Perfect Storm for a Lawsuit).  And, if nothing else, employers should evaluate the process and policies in place for conducting such checks.

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