WEST virginia Legislature
2020 regular session
House Bill 4905
By Delegate S. Brown
[Introduced February 11, 2020; Referred to the Committee on the Judiciary]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §29-6A-1, §29-6A-2, §29-6A-3, §29-6A-4 and §29-6A-5, all relating to enacting the Ban-the-Box Act, prohibiting public employers from asking applicants for employment to disclose information concerning the applicant’s criminal record or history, under certain circumstances.
Be it enacted by the Legislature of West Virginia:
ARTICLE 6A. BAN-THE-BOX ACT.
The Legislature finds that it is the duty of the State of West Virginia to encourage and contribute to the successful reintegration of people with a criminal history. The ability to procure meaningful employment is essential to reinstating good citizenship. The Legislature also finds that reducing barriers to employment for persons with a criminal history is a matter of statewide concern and that increasing employment opportunities will reduce recidivism and improve community stability.
§29-6A-2. Short title; scope.
(a) This article may be known and cited as the “Ban-the-Box Act.”
(b) This article only applies to public employers and does not apply to private employers.
(c) This article is not applicable to public employers that require, by state or federal law, a criminal history inquiry as a preliminary qualification to be considered for public employment. Those positions may include law enforcement, community safety, civil service, and any position that involves direct interaction with minors or the elderly.
(d) This article does not apply to the practice of law, but nothing in this article precludes the Supreme Court of Appeals, in its discretion, from adopting the policies set forth in this article.
(e) This article encourages similar hiring practices among local governments and private employers operating within the state.
For purposes of this article:
“Applicant” means any person considered for, or who requests to be considered for, public employment or any current employee considered for, or who requests to be considered for, another position of public employment.
“Criminal history” means a state or federal conviction of a crime, whether a misdemeanor or felony, that bears upon an applicant’s fitness for public employment.
“Inquiry” means any direct or indirect conduct intended to gather information, using any mode of communication.
“Public employer” means the State of West Virginia, its agencies, boards and commissions.
§29-6A-4. Criminal history.
(a) A public employer may not ask an applicant to disclose, orally or in writing, information concerning the applicant’s criminal record or history, including any inquiry on any employment application, until the applicant has:
(1) Signed the appropriate waiver authorizing release;
(2) Is being considered for a specific position; and
(3) Has received an interview.
(b) Where a background check has been lawfully completed and a criminal history exists, the state shall consider the following criteria before either proffering or denying an offer of employment:
(1) The nature and gravity of the offense;
(2) The length of time that has elapsed since the offense occurred;
(3) The age of the person at the time of the conviction;
(4) Whether the offense is reasonably related to the duties and responsibilities of the employment sought by the applicant; and
(5) Any information pertaining to the degree of rehabilitation that may have taken place in the applicant.
(c) A record of arrest that did not result in conviction may not be the basis for disqualification from public employment.
(d) The public employer shall inform the applicant of the potential adverse employment decision based on the background check report prior to a final decision and shall provide an opportunity to demonstrate that the applicant was not correctly identified in the background check report or that the report is otherwise inaccurate.
A complaint or grievance concerning violations of this article by public employers shall be processed and adjudicated in accordance with the procedures of §29A-5-1 et seq. of this code.
NOTE: The purpose of this bill is to enact the Ban-the-Box Act which prohibits public employers from asking applicants for employment to disclose information concerning the applicant’s criminal record or history, under certain circumstances.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.