As of September 22, 2024, employers in the US Virgin Islands must comply with the new Fair Chance for Employment Act, which regulates the use of criminal history in hiring decisions. Replacing previous laws, this Act introduces enhanced protections for individuals with criminal records, ensuring fair consideration based on qualifications. Employers operating in the Virgin Islands should familiarize themselves with the obligations and restrictions outlined in this legislation to stay compliant and avoid potential penalties.
What is the US Virgin Islands Fair Chance for Employment Act, and to whom does it apply?
The Fair Chance for Employment Act aims to prevent discrimination against individuals with criminal histories in hiring processes. This Act mandates that employers evaluate candidates based on qualifications before considering criminal records, removing unnecessary barriers to employment. The Act applies to a wide range of employers, including:
- Public agencies and government contractors
- Private businesses and corporations
- Training and apprenticeship programs
This law is intended to provide equitable hiring opportunities for applicants with past convictions and support their reintegration into the workforce.
What hiring practices are prohibited under the Act?
The Act prohibits employers from inquiring about an applicant’s criminal history until the applicant is determined to be “otherwise qualified” for the position. This means employers may not ask about criminal records in initial job applications or use statements in job advertisements that would disqualify individuals with criminal histories unless a statutory disqualification applies. This “ban-the-box” policy ensures that initial evaluations focus solely on a candidate’s skills and qualifications.
What is a conditional offer of employment, and how does it affect criminal background checks?
A conditional offer of employment is a job offer extended to an applicant that is contingent on successfully completing a criminal background check. Under the Act, employers may only conduct criminal history inquiries after extending this conditional offer, allowing candidates to progress based on merit before any background check. Employers should clarify to candidates that the offer is conditional and subject to the background screening results.
What is an individualized assessment, and when is it required?
An individualized assessment is required when an employer is considering rescinding a conditional offer based on the results of a criminal background check. This assessment includes:
- Reviewing whether the applicant’s criminal offense is relevant to the job responsibilities.
- Considering any documentation or evidence demonstrating the applicant’s rehabilitation.
This requirement encourages employers to consider the context of an applicant’s criminal history before making a final hiring decision.
What steps should I take if I decide not to hire an applicant based on criminal history?
If you decide not to hire an applicant based on their criminal history, follow these steps to comply with both the Fair Credit Reporting Act (FCRA) and the US Virgin Islands Fair Chance for Employment Act:
1. Pre-Adverse Action Process (FCRA Requirement)
The US Virgin Islands Fair Chance for Employment Act does not establish a pre-adverse action process, so employers should follow the FCRA’s requirements.
Before withdrawing a conditional offer, provide the applicant with a pre-adverse action notice that includes:
- A copy of the background report used in your decision.
- A copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.”
- This step allows the applicant to review the report and address any information before a final decision.
2. Adverse Action Requirements (FCRA Requirements)
If you decide to proceed with the decision not to hire after allowing the applicant time to review the report, notify the applicant (orally, in writing, or electronically) that they were not hired due to information in the background report.
Include:
- The name, address, and phone number of the company that provided the report.
- A statement that the background check company did not make the hiring decision and cannot provide specific reasons for the employer’s decision.
- Information on the applicant’s right to dispute the report’s accuracy or completeness and obtain a free report within 60 days.
3. Additional Written Notice of Decision (USVI Fair Chance Act Requirement)
The US Virgin Islands Fair Chance for Employment Act includes additional requirements:
- Provide a written notice to the applicant specifying that their criminal history was the reason for rescinding the conditional offer.
- Allow the applicant to meet with you or a designated representative to discuss the decision.
What penalties could I face for non-compliance with the Fair Chance Act?
Non-compliance with the Fair Chance for Employment Act can lead to both civil and criminal penalties for employers. Applicants affected by violations may seek damages, including actual financial losses or a minimum award of $200, along with reimbursement for legal costs and attorney fees. Employers found violating the Act may also face criminal penalties, which could include up to six months imprisonment, a fine of up to $500, or both.
What steps should I take to comply with the Fair Chance Act?
Employers can take several actions to ensure compliance with the Fair Chance Act:
- Update Job Applications and Advertisements: Remove criminal history questions from initial job applications, and avoid wording in job ads that might discourage applicants with criminal records.
- Implement Conditional Offer Protocols: Delay background checks until after extending a conditional offer and communicate that the offer is contingent upon the background check results.
- Develop Adverse Action Procedures: If a conditional offer is rescinded based on criminal history, ensure a process is in place to provide written notice and an opportunity for the applicant to discuss the decision.
- Train Hiring Staff: Educate hiring managers on the Fair Chance Act’s requirements, particularly around the timing of background checks and handling adverse action notices.
Any parting thoughts?
The US Virgin Islands Fair Chance for Employment Act establishes new ‘ban-the-box’ hiring standards, requiring employers to comply with fair employment practices and criminal history considerations. By adhering to these regulations, employers in the Virgin Islands can minimize penalties and ensure alignment with local hiring laws.