Bill Description: H196 would prohibit businesses from asking job applicants about their criminal records.
Does it give government any new, additional, or expanded power to prohibit, restrict, or regulate activities in the free market? Conversely, does it eliminate or reduce government intervention in the market?
H196 would limit employers’ ability to ask about job applicants’ criminal records. Businesses would only be allowed to obtain information about an applicant’s criminal record once the applicant has progressed through the application process. This could lead to a loss of employers’ and applicants’ time, as businesses could not screen out applicants they won’t hire early in the process.
First, H196 would prohibit businesses with 20 or more employees from advertising in a job listing that they will not hire an individual with a criminal record. For example, a local business hiring for an accounting position may not want to hire an individual convicted of fraud or embezzlement. Under the Fair Chance Employment Act, the business could not include in its advertisement that it will not hire anyone for the position who has been convicted of fraud, embezzlement, theft or other related crimes.
Second, H196 would prohibit businesses from asking about an applicant’s criminal record on an application form or through other application processes. A business could only ask about or otherwise require disclosure of a criminal record after an applicant is determined to be qualified for the position and either invited to interview with the company or given an offer of employment, contingent upon passing a background check.
Does it violate the spirit or the letter of either the US Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the US Constitution or the Idaho Constitution?
Article I, Section 9 of the Idaho Constitution says, "Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty." House Bill 196 seeks to abridge that right in three separate instances. Firstly, the bill specifically makes it illegal to "post language in a job posting that seeks to exclude an applicant with a criminal conviction."
The bill also makes it illegal to "ask an applicant about a criminal conviction on a job application form."
Plus it is illegal for an employer to "inquire about or into, consider, or require disclosure of the criminal conviction record of an applicant until the applicant has been determined qualified for the position and notified that the applicant has been selected for an interview by the employer or employment agency or, if there is not an interview, until after a conditional offer of employment is made to the applicant by the employer or employment agency." These three separate instances restrict an employer’s right of free speech.
Analyst Note: This is virtually the same bill as SB1318 which failed to pass in the 2020 legislative session.
The following changes have been made: Applies to organizations with 20 or more employees, instead of 5. Adds exclusions for 501(c)3 organizations and to positions requiring keys to a safe containing cash.
Some legislators have pointed out the need to address this issue, as people convicted and adjudicated of a crime might have trouble finding employment if forced to disclose a prior conviction. It is important to note, however, that this legislation also precludes employers who prefer to hire people with a criminal conviction from seeking out those employees, further stigmatizing individuals unnecessarily. Additionally, while the bill has a specific prohibition against private sector employers from asking about criminal backgrounds, government agencies are given special status and are not enjoined from such inquiries.
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