Employers Have New Obligations Under Clean Slate Law

Effective Jan. 1, 2023, Connecticut’s clean slate law automatically erases low-level criminal records for individuals who have been released from prison and remained crime free (subject to the state taking such action administratively to do so). 

By doing so, the state has created a path for individuals with certain criminal history to pursue employment without being required to disclose their past criminal record, in many instances.

The new law prohibits an employer from discriminating against an employee or job applicant based on their criminal history.

Who is Affected?

Generally, individuals with misdemeanors and those with low-level felony records are eligible to have their records erased. Specifically:

1. Individuals with a classified or unclassified misdemeanor offense will be eligible for their record to be erased after seven years if such offense occurred on or after Jan. 1, 2000; and
2. Individuals with any class D or E felony or an unclassified felony offense carrying a term of imprisonment of not more than five years will be eligible to have the record erased after 10 years, if such offense occurred on or after Jan. 1, 2000.
3. Individuals with charges such as family violence, nonviolent sexual offenses and sexually violent offenses are not eligible.

While Connecticut has long since had an erased criminal record statute that prohibits employers from asking about such records, the clean slate law adds more protections for individuals with a criminal history. 

Revised Law

The revised law prevents employers (now defined as anyone with one or more employees) from requiring an employee or prospective employee to disclose any “erased criminal history record information.” 

For context, “erased criminal history record information” is defined as follows:

Erased criminal history record information means (A) criminal history record information that has been erased pursuant to section 54- 142a of the general statutes, as amended by this act, or section 54-76o of the general statutes, or any other provision of the general statutes or other operation of law; (B) information relating to persons granted youthful offender status pursuant to section 46b-146 of the general statutes; and (C) continuances of a criminal case that are more than 13 months old.

The law also makes it a separate “discriminatory practice” for an employer to discriminate against an employee on the basis of that person’s erased criminal history or record. 

Arrest, Conviction Records

If asked about their criminal history, under the clean slate law, applicants with all convictions erased are now allowed to say that they do not have a criminal record. 

Applicants can also say that they have not been arrested either. 

Therefore, because an individual’s record has been erased, they are provided with a clean slate as though there was no record to begin with.

When implementing changes to the hiring process relative to this law, employers should make changes to their employment applications, under some circumstances. 

If the application asks questions concerning criminal history, the application is required to include a notice, in clear and conspicuous language (preferably bold big letters) that state:

(1) the applicant is not required to disclose the existence of any erased criminal history record information, (2) that erased criminal history record information are records pertaining to a finding of delinquency or that a child was a member of a family with service needs, an adjudication as a youthful offender, a criminal charge that has been dismissed or nulled, a criminal charge for which the person has been found not guilty or a conviction for which the person received an absolute pardon or criminal records that are erased pursuant to statute or by other operation of law, and (3) that any person with erased criminal history record information shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.

Remedy

If an individual believes that an employer or prospective employer violated the law, they have three avenues to file a claim. 

Depending on the claim, an individual may file with:

1. Connecticut Department of Labor
2. Connecticut Commission on Human Rights and Opportunities
3. Connecticut Superior Court

Employer Implications

Review employment application forms. If your current employment application forms request information about an applicant’s criminal history, update the form and any notices to ensure that it complies with the law.

Review background check practice. Ensure that hiring personnel and third parties conducting background checks are informed of the requirements of this law.

Educate managers and supervisors. Because it is a discriminatory practice to discriminate against an individual based on an erased criminal history record, inform hiring personnel that this information is prohibited in employment decisions, especially hiring and termination decisions. 

Hiring managers should also be cautious about relying on old criminal records (including those found in Google searches from old news articles) when making employment decisions.

Revise policies. Consider revising EEO policies to include past criminal history or record as a protected class.

At a minimum, employers should advise employees and third parties involved in the hiring process of the new law and ensure that such erased records are not relied on.

This article first appeared on CBIA's website and is republished here with permission.