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Senate Bill 1318 — Fair Chance Employment Act

Senate Bill 1318 — Fair Chance Employment Act

Idaho Freedom Foundation staff
February 11, 2020

Analysts: Phil Haunschild and Wayne Hoffman

Bill description: SB 1318 would prohibit businesses from asking job applicants about their criminal records.

Rating: -4

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? 

SB 1318 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, SB 1318 would prohibit businesses 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, SB 1318 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." Senate Bill 1318 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.


Does it violate the principle of equal protection under the law? Examples include laws which discriminate or differentiate based on age, gender, or religion or which apply laws, regulations, rules, or penalties differently based on such characteristics. Conversely, does it restore or protect the principle of equal protection under the law?

An amendment to this bill says, "no county, city, agency, board, or any other political subdivision of this state may adopt or enforce any law, rule, regulation, or ordinance that regulates in any manner the creation of protected classification of persons and the protections for such persons in matters of employment, housing, and public accommodations other than contained in this chapter."

This provision would prevent local governments from passing discriminatory laws that extend special protections to some people while excluding others.


Analyst’s Note: 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. However, it is important to note that this legislation also precludes employers, with a preference for hiring people who have had a criminal conviction, from seeking out those employees, further stigmatizing individuals unncessarily. 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. 

Finally, some legislators have suggested that if this legislation "proves to be problematic" a future Legislature can repeal the same. It's worth nothing that it has taken more than 100 years for the Legislature to repeal a law on hogs running at large in the city (2020 legislation), and eight decades for the Legislature to repeal a law restricting below-cost sales in Idaho (2018 legislation). 

Analyst's Note on Amendment: An amendment to this bill would exempt "an employer that holds a tax exempt status pursuant to section 501(c)(3) of the Internal Revenue Code and that is affiliated and in good standing with a congressionally chartered organization and the standards set forth for it pursuant to 36 U.S.C. subtitle II, part B" or "to positions that are master key holders or keepers of the key or combination to a safe or room dedicated to the counting and storage of cash."

This amendment only serves to underscore one of the primary problems with the bill, which is that some businesses have very good reasons for excluding applicants who have criminal records. Instead of attempting to exempt some businesses and institutions through statute, all businesses should be allowed to make hiring decisions based on their unique needs and priorities.

This bill rating was updated on 2/18 and on 3/18.

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