Vermont Enacts Ban the Box

Posted: May 05, 2016

On May 3, Vermont became the latest state to enact ban the box legislation when Governor Peter Shumlin signed House Bill 261 into law. The act takes effect July 1, 2017 and will apply to any employer doing business or operating in Vermont that has one or more employees in the state. The legislation is what some would refer to as a “straight” or “traditional” ban the box law as it primarily regulates only the timing of the criminal history inquiry itself. Under the law, an employer may not inquire into an individual’s criminal history on an initial employment application; however, an employer may ask about criminal history in an interview or once the prospective employee has been deemed otherwise qualified for the position. There are a few exceptions to these parameters that allow employers to inquire into criminal history on an initial employment application:

• If there is a federal or state law or regulation that creates a mandatory or presumptive disqualification based on certain criminal history that applies to the position being filled, or
• If the employer is obligated by federal or state law or regulation to not employ an individual, in either one or more positions, who has been convicted of one or more criminal offenses.
  • This applies particular exception applies even if the law or regulation permits an employer to obtain a waiver that would allow the individual with the disqualifying criminal history to be employed.

However, for those exceptions to apply, the question (or questions) on the employment application must be limited to only the particular criminal convictions that could disqualify an individual. Further, if the employer meets one of the exceptions, includes the criminal history question on an initial employment application and the individual is still eligible for the position, the employer must allow the individual to explain the information regarding any conviction(s) including post-conviction rehabilitation. Employers who violate this law may be subject to civil penalties of up to $100 per violation.