2021 -- S 0605

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LC002267

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2021

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS - THE FAIR CHANCE EMPLOYMENT

ACT

     Introduced By: Senators Euer, Miller, Lawson, Acosta, Quezada, DiMario, Valverde, and
Bell

     Date Introduced: March 11, 2021

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 28 of the General Laws entitled 'LABOR AND LABOR RELATIONS'

is hereby amended by adding thereto the following chapter:

CHAPTER 60

THE FAIR CHANCE EMPLOYMENT ACT

     28-60-1. Short title.

     This chapter may be known and may be cited as the "Fair Chance Employment Act".

     28-60-2. Definitions.

     For the purposes of this chapter:

     (1) "Adverse action" in the context of employment means to fail or refuse to hire, to

discharge, or to not promote any individual; or to limit, segregate or classify employees in any way

which would deprive or tend to deprive any individual of employment opportunities, or otherwise

adversely affect his/her status as an employee. The "adverse action" must relate to employment in

whole or substantial part in Rhode Island.

     (2) "Arrest" means a record from any jurisdiction that does not result in a conviction and

includes information indicating that a person has been questioned, apprehended, taken into custody

or detained, or held for investigation, by law enforcement, police, or prosecutorial agency and/or

charged with, indicted, or tried and acquitted for any felony, misdemeanor or other criminal

offense. "Arrest" is a term that is separate and distinct from, and that does not include, "unresolved

arrest."

     (3) "Background check report" means any criminal history report, including, but not

limited to, those produced by the Rhode Island attorney general, the Federal Bureau of

Investigation, other law enforcement or police agencies, or courts, or by any consumer reporting

agency or business, employment screening agency or business, or tenant screening agency or

business.

     (4) "Conviction" means a record from any jurisdiction that includes information indicating

that a person has been convicted of a felony or misdemeanor; provided that, the conviction is one

for which the person has been placed on probation, fined, imprisoned, or paroled. Those matters

identified in § 28-60-2 about which an employer may not inquire and as to which they may not

base an adverse action, are not considered "convictions."

     (5) "Conviction history" means information regarding one or more convictions or

unresolved arrests, transmitted orally or in writing or by any other means, and obtained from any

source, including, but not limited to, the individual to whom the information pertains and a

background check report.

     (6) "Directly-related conviction" in the employment context means that the conduct for

which a person was convicted or that is the subject of an unresolved arrest has a direct, specific and

articulable negative bearing on that person's ability to perform the duties or responsibilities

necessarily related to the employment position. In determining whether the conviction or

unresolved arrest is directly related to the employment position, the employer shall consider

whether the employment position offers the opportunity for the same or a similar offense to occur

and whether circumstances leading to the conduct for which the person was convicted or that is the

subject of an unresolved arrest will recur in the employment position. Those matters identified in

§ 28-60-3 about which an employer may not inquire and as to which they may not base an adverse

action may not qualify as "directly-related convictions."

     (7) "Director" means the head of the department of labor and training.

     (8) "DLT" means the Rhode Island department of labor and training or any successor

department or office.

     (9) "Employer" means any individual, firm, corporation, partnership, labor organization,

group of persons, association, or other organization however organized, that is located or doing

business in Rhode Island, and that employs five (5) or more persons regardless of location,

including the owner or owners and management and supervisorial employees. "Employer" includes

job placement and referral agencies and other employment agencies. "Employer" does not include

any local governmental unit, or any unit of the state government or the federal government.

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     (10) "Employment" means any occupation, vocation, job, or work, including, but not

limited to, temporary or seasonal work, part-time work, contracted work, contingent work, work

on commission, and work through the services of a temporary or other employment agency, or any

form of vocational or educational training with or without pay. The physical location of the

employment or prospective employment of an individual as to whom this chapter applies must be

at least eight (8) hours per week within Rhode Island.

     (11) "Evidence of rehabilitation or other mitigating factors" may include, but is not limited

to, a person's satisfactory compliance with all terms and conditions of parole and/or probation

(however, inability to pay fines, fees, and restitution due to indigence shall not be considered

noncompliance with terms and conditions of parole and/or probation); employer recommendations,

especially concerning a person's post-conviction employment; educational attainment or vocational

or professional training since the conviction, including training received while incarcerated;

completion of or active participation in rehabilitative treatment (e.g., alcohol or drug treatment);

letters of recommendation from community organizations, counselors or case managers, teachers,

community leaders, or parole/probation officers who have observed the person since his or her

conviction; and age of the person at the time of the conviction. Examples of mitigating factors that

are offered voluntarily by the person may include, but are not limited to, explanation of the

precedent coercive conditions, intimate physical or emotional abuse, or untreated substance abuse

or mental illness that contributed to the conviction.

     (12) "Inquire" means any direct or indirect conduct intended to gather information from or

about an applicant, candidate, potential applicant or candidate, or employee, using any mode of

communication, including, but not limited to, application forms, interviews, and background check

reports.

     (13) "Person" means any individual, person, firm, corporation, business or other

organization or group of persons however organized.

     (14) "Unresolved arrest" means an arrest that is undergoing an active pending criminal

investigation or trial that has not yet been resolved. An arrest has been resolved if the arrestee was

released and no accusatory pleading was filed charging him or her with an offense, or if the charges

have been dismissed or discharged by the district attorney or the court.

     28-60-3. Procedures for use of criminal history information in employment decisions.

     (a) Regarding applicants or potential applicants for employment, or employees, an

employer shall not, at any time or by any means, inquire about, require disclosure of, or if such

information is received base an adverse action in whole or in part on:

     (1) An arrest not leading to a conviction, except under circumstances identified in this

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section an unresolved arrest;

     (2) Participation in or completion of a diversion or a deferral of judgment program;

     (3) A conviction that has been judicially dismissed, expunged, voided, invalidated, or

otherwise rendered inoperative;

     (4) A conviction or any other determination or adjudication in the juvenile justice system,

or information regarding a matter considered in or processed through the juvenile justice system;

     (5) A conviction that is more than seven (7) years old, the date of conviction being the date

of sentencing, except that this restriction, and any limitations imposed in this chapter based on the

limitation in this subsection, shall not apply where the applicant or employee is or will be:

     (i) Providing services to or have supervisory or disciplinary authority over a minor;

     (ii) Providing services to or have supervisory or disciplinary authority over a dependent

adult; or

     (iii) Providing support services or care to or has supervisory authority over a person sixty-

five (65) years or older;

     (6) Information pertaining to an offense other than a felony or misdemeanor, such as an

infraction, except that an employer may inquire about, require disclosure of, base an adverse action

on, or otherwise consider an infraction or infractions contained in an applicant or employee's

driving record if driving is more than a de minimis element of the employment in question; or

     (7) A conviction that arises out of conduct that has been decriminalized since the date of

the conviction, the date of the conviction being the date of sentencing. Accordingly, the matters

identified in this section may not be considered in any manner by the employer.

     (b) The employer shall not require applicants or potential applicants for employment or

employees to disclose on any employment application the fact or details of any conviction history,

any unresolved arrest, or any matter identified in subsections (a)(1) through (a)(7) of this section.

Nor shall the employer inquire on any employment application about the fact or details of any

conviction history, any unresolved arrest, or any matter identified in subsections (a)(1) through

(a)(7) of this section. An employer may ask on an employment application for an applicant,

potential applicant, or employee's written consent for a background check so long as the application

includes a clear and conspicuous statement that the employer will not itself conduct or obtain from

a third party the background check until after a conditional offer of employment in accordance with

subsection (c) of this section.

     (c) The employer shall not require applicants or potential applicants for employment, or

employees, to disclose, and shall not inquire into or discuss, their conviction history or an

unresolved arrest until after a conditional offer of employment. The employer may not itself

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conduct or obtain from a third party a background check until after a conditional offer of

employment.

     (d) Prior to any conviction history inquiry, the employer shall provide a copy of the notice

described in subsection (b) of this section to the applicant or employee.

     (e) Prior to obtaining a copy of a background check report, the employer shall comply with

all state and federal requirements to provide notice to the applicant or employee that such a report

is being sought.

     (f) In making an employment decision based on an applicant's or employee's conviction

history, an employer shall conduct an individualized assessment, considering only directly-related

convictions, the time that has elapsed since the conviction or unresolved arrest, and any evidence

of inaccuracy or evidence of rehabilitation or other mitigating factors.

     (g) If an employer intends to base an adverse action on an item or items in the applicant or

employee's conviction history, prior to taking any adverse action the employer shall provide the

applicant or employee with a copy of the background check report, if any, and shall notify the

applicant or employee of the prospective adverse action and the items forming the basis for the

prospective adverse action.

     (h) If, within seven (7) days of the date that the notice described in subsection (g) of this

section is provided by the employer to the applicant or employee, the applicant or employee gives

the employer notice, orally or in writing, of evidence of the inaccuracy of the item or items of

conviction history or any evidence of rehabilitation or other mitigating factors, the employer shall

delay any adverse action for a reasonable period after receipt of the information and during that

time shall reconsider the prospective adverse action in light of the information.

     (i) Upon taking any final adverse action based upon the conviction history of an applicant

or employee, an employer shall notify the applicant or employee of the final adverse action.

     (j) It shall be unlawful for any employer to engage in any communication that is intended

and reasonably likely to reach persons who are reasonably likely to seek employment in the state,

and that expresses, directly or indirectly, that any person with an arrest or conviction will not be

considered for employment or may not apply for employment. For purposes of subsection (j) of

this section, engaging in a communication includes, but is not limited to, making a verbal statement

or producing or disseminating any solicitation, advertisement, or signage.

     (k) Nothing in this chapter shall be construed to prohibit an employer from observing the

conditions of a seniority system or an employee benefit plan, provided such systems or plans are

not a subterfuge to evade the purposes or requirements of this chapter.

     28-60-4. Notice and posting requirements for employers.

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     (a) The employer shall state in all solicitations or advertisements for employees that are

reasonably likely to reach persons who are reasonably likely to seek employment that the employer

will consider for employment qualified applicants with criminal histories in a manner consistent

with the requirements of this chapter.

     (b) The DLT shall publish and make available to employers, in English, Spanish, and all

languages spoken by more than five percent (5%) of the Rhode Island workforce, a notice suitable

for posting by employers in the workplace informing applicants and employees of their rights under

this chapter. The DLT shall update this notice on December 1 of any year in which there is a change

in the languages spoken by more than five percent (5%) of the Rhode Island workforce.

     (c) Employers shall post the notice described in subsection (b) of this section in a

conspicuous place at every workplace, job site, or other location in Rhode Island under the

employer's control frequently visited by their employees or applicants, and shall send a copy of this

notice to each labor union or representative of workers with which they have a collective bargaining

agreement or other agreement or understanding, that is applicable to employees in Rhode Island.

The notice shall be posted in English, Spanish, and any language spoken by at least five percent

(5%) of the employees at the workplace, job site, or other location at which it is posted.

     28-60-5. Implementation and enforcement of employment provisions.

     (a) Administrative enforcement.

     (1) With regard to the employment provisions of this chapter, the DLT is authorized to take

appropriate steps to enforce this chapter and coordinate enforcement, including the investigation of

any possible violations of this chapter. Where the DLT has reason to believe that a violation has

occurred, it may order any appropriate temporary or interim relief to mitigate the violation or

maintain the status quo pending completion of a full investigation or hearing. The DLT shall not

find a violation based on an employer's decision that an applicant or employee's conviction history

is directly related, but otherwise may find a violation of this chapter, including if the employer

failed to conduct the individualized assessment as required under § 28-60-3(f).

     (2) Where the DLT determines that a violation has occurred, it may issue a determination

and order any appropriate relief; provided, however, that for a first violation, or for any violation

during the first twelve (12) months following the effective date of this chapter, the DLT must issue

warnings and notices to correct, and offer the employer technical assistance on how to comply with

the requirements of this chapter. For a second violation, the DLT may impose an administrative

penalty of no more than fifty dollars ($50.00) that the employer must pay to the state for each

employee or applicant as to whom the violation occurred or continued. Thereafter, for subsequent

violations, the penalty may increase to no more than one hundred dollars ($100), payable to the

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state for each employee or applicant whose rights were, or continue to be, violated. Such funds

shall be allocated to the DLT and used to offset the costs of implementing and enforcing this

chapter.

     (3) If multiple employees or applicants are impacted by the same procedural violation at

the same time (e.g. all applicants for a certain job opening are asked for their conviction history on

the initial application), the violation shall be treated as a single violation rather than multiple

violations.

     (4) Where the DLT determines that a violation has occurred, it may issue a determination

and order any appropriate relief. If multiple employees or applicants are impacted by the same

procedural violation at the same time (e.g., all applicants for a certain job opening are asked for

their conviction history on the initial application), the violation shall be treated as one violation for

each impacted employee or applicant.

     (5) An employee, applicant or other person may report to the DLT any suspected violation

of this chapter within sixty (60) days of the date the suspected violation occurred. The DLT shall

encourage reporting pursuant to this subsection by keeping confidential, to the maximum extent

permitted by applicable laws, the name and other identifying information of the employee,

applicant or person reporting the violation; provided, however, that with the authorization of such

person, the DLT may disclose his or her name and identifying information as necessary to enforce

this chapter or for other appropriate purposes.

     (6) The director of the DLT shall establish regulations governing the administrative process

for determining and appealing violations of this chapter. The regulations shall include procedures

for:

     (i) Providing the employer with notice that it may have violated this chapter;

     (ii) Providing the employer with a right to respond to the notice;

     (iii) Providing the employer with notice of the DLT's determination of a violation; and

     (iv) Providing the employer with an opportunity to appeal the DLT's determination to a

hearing officer, who is appointed by the director or designee.

     (7) If there is no appeal of the DLT's determination of a violation that determination shall

constitute a failure to exhaust administrative remedies, which shall serve as a complete defense to

any petition or claim brought by the employer against the state regarding the DLT's determination

of a violation.

     (8) If there is an appeal of the DLT's determination of a violation, the hearing before the

hearing officer shall be conducted in a manner that satisfies the requirements of due process. In any

such hearing, the DLT's determination of a violation shall be considered prima facie evidence of a

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violation, and the employer shall have the burden of proving, by a preponderance of the evidence,

that the DLT's determination of a violation is incorrect. The hearing officer's decision of the appeal

shall constitute the state's final decision.

     (b) Civil enforcement. The state or any employee or applicant whose rights under this

chapter have been violated may bring a civil action in a court of competent jurisdiction against the

employer or other person violating this chapter, 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:

reinstatement; back pay; the payment of benefits or pay unlawfully withheld; the payment of an

additional sum as liquidated damages in the amount of five hundred dollars ($500) to each

employee, applicant or other person whose rights under this chapter were violated for each day

such violation continued or was permitted to continue; appropriate injunctive relief; and, further

shall be awarded reasonable attorneys' fees and costs. If an employee or applicant brings an action

under this subsection, DLT shall not have jurisdiction to investigate or issue violations related to

the facts underlying the action, provided the action is not withdrawn or dismissed without prejudice.

     (c) Interest. In any administrative or civil action brought under this chapter, the DLT or

court, as the case may be, shall award interest on all amounts due and unpaid at the rate of interest

specified in § 9-21-8.

     (d) Remedies cumulative. Except where otherwise provided, the remedies, penalties, and

procedures provided under this chapter are cumulative.

     (e) Limitation on actions. Civil actions to enforce the employment provisions of this

chapter must be filed within one year after the date of the violation. This limitations period shall

not commence until the date the violation was discovered or could reasonably have been

discovered.

     (f) Tracking of complaints. DLT shall maintain a record of the number and types of

complaints it receives alleging violations of this chapter, and the resolution of those complaints.

DLT shall report this information to the general assembly within six (6) months of the effective

date of the chapter and then annually thereafter.

     28-60-6. Employer records.

     (a) An employer shall retain records of employment, application forms, and other pertinent

data and records required under this chapter, for a period of three (3) years, and shall allow the

DLT access to such records, with appropriate notice and at a mutually agreeable time, to monitor

compliance with the requirements of this chapter.

     (b) An employer shall provide information to the DLT, or designee, on an annual basis as

may be required to verify the employer's compliance with this chapter.

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     (c) In no event shall the DLT require an employer to provide any information or documents

the disclosure of which would violate state or federal law.

     (d) Where an employer does not maintain or retain adequate records documenting

compliance with this chapter or does not allow the DLT reasonable access to such records, it shall

be presumed that the employer did not comply with this chapter, absent clear and convincing

evidence otherwise.

     (e) Pursuant to its regulatory authority under this chapter, the DLT shall adopt regulations

that establish procedures for employers to maintain and retain accurate records and to provide

annual reporting of compliance to DLT in a manner that does not require disclosure of any

information that would violate state or federal privacy laws.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS - THE FAIR CHANCE EMPLOYMENT

ACT

***

     This act would prohibit employers from conducting a background check until after a

conditional employment offer is made, and prohibit considering convictions more than seven (7)

years old when making employment decisions, except under certain circumstances.

     This act would take effect upon passage.

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