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Delaware “Bans the Box”: Criminal History no Longer Permitted on Job Applications

Labor and Employment Alert | May 9, 2014
By: Marc S. Casarino

The State of Delaware has joined the growing ranks of governmental bodies that forbid inquiry into a job applicant’s criminal or credit history until after a conditional offer of employment. Colloquially named “ban the box” legislation because applications may no longer require job seekers to check a box regarding criminal or credit history, such laws have found favor among state and local governments seeking to stem recidivism by enhancing employment opportunities for offenders who no longer pose a risk to society. Effective immediately, the Delaware “ban the box” law applies to all state agencies and political subdivisions of the state.

Delaware public employers cannot consider a job applicant’s criminal record, criminal history, credit history, or credit score during the application process, up to and including the first interview. Once an applicant is deemed otherwise qualified and a conditional offer of employment is extended, the public employer may inquire into the applicant’s criminal and credit history. However, inquiry into an applicant’s criminal history is limited to felony convictions within the prior ten years and misdemeanor convictions within the prior five years. There is no similar look back limitation on an applicant’s credit history. When evaluating an applicant’s criminal history, public employers shall consider mitigating factors, such as (i) the nature of the crime and its relationship to the duties of the position sought or held, (ii) any information pertaining to the degree of rehabilitation and good conduct, (iii) does the prospective job provide an opportunity for the commission of similar offense, (iv) are there circumstances leading to the offense likely to reoccur, and (v) how much time has elapsed since the offense.

Delaware’s “ban the box” law is not applicable to state, county, or municipal police agencies, the Department of Corrections, or any position where inquiry into an applicant’s criminal history is specifically required or permitted by state or federal law. While the new law is not expressly applicable to contractors, a contractor’s compliance with the “ban the box” law will be among the performance criteria evaluated when awarding governmental contracts in the State of Delaware. Accordingly, private employers bidding upon or working under contracts with public agencies in Delaware must be mindful of the restrictions imposed by the “ban the box” law.

For more information on "ban the box" or other labor and employment issues, please contact Marc S. Casarino at 302.467.4520 or casarinom@whiteandwilliams.com.

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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