US Virgin Islands Fair Chance Act Takes Effect

Employers who hire in Los Angeles County should review their procedures to ensure compliance

The U.S. Virgin Islands Fair Chance for Employment Act, which took effect on September 22, 2024, introduces new guidelines for employers regarding when and how they can inquire about and consider an applicant’s criminal history. The Act seeks to remove barriers for individuals with criminal records by delaying the point at which employers can conduct criminal background checks, thereby expanding employment opportunities for qualified candidates with prior convictions. Employers operating within the U.S. Virgin Islands should understand the new requirements to ensure compliance and avoid potential penalties.

Key Provisions for Employers

The Fair Chance Act, often referred to as a “ban-the-box” law, mandates several key changes that impact hiring practices in the U.S. Virgin Islands. It specifically targets the timing of criminal history inquiries, the need for individualized assessments, and requirements for job applications to include statements regarding the impact of criminal history on employment eligibility.

Timing of Criminal History Inquiries

One of the primary components of the Act is the restriction on when employers may ask about an applicant’s criminal background. Employers are prohibited from inquiring about or conducting a background check on an applicant’s criminal history until after a conditional offer of employment has been made. This “conditional offer” framework means that the employer must first determine if the applicant meets other qualifications for the position and is otherwise a suitable candidate. Only after the conditional offer has been extended can the employer legally investigate the applicant’s criminal background.

This approach intends to ensure that all candidates have a fair opportunity to demonstrate their qualifications without being prematurely disqualified due to past criminal records. Employers should review their application and interview processes to ensure criminal history inquiries or background checks do not occur before a conditional job offer, which could result in compliance issues and potential fines.

Individualized Assessment Requirements

In addition to specifying the timing of criminal history inquiries, the Act requires that employers conduct an individualized assessment if they are considering taking adverse action based on an applicant’s criminal record. The individualized assessment is meant to prevent blanket exclusions of candidates with criminal records and requires employers to consider specific factors, including:

  1. Nature and Gravity of the Offense: The employer must evaluate how serious the offense was and whether it is relevant to the position.
  2. Time Elapsed Since the Offense: Employers should consider how much time has passed since the conviction or completion of the sentence. Generally, older convictions are less relevant to current job performance and, in many cases, should be less impactful on hiring decisions.
  3. Relevance to the Position: The assessment must take into account whether the nature of the conviction is directly related to the duties and responsibilities of the position in question.

These factors allow employers to evaluate candidates on an individualized basis, providing a fairer consideration of candidates with diverse histories. Employers should document each individualized assessment they conduct, explaining the factors considered and how they reached their hiring decision. This documentation may be crucial for demonstrating compliance if challenged.

Application Form Requirements

Under the Fair Chance Act, employers are required to include specific language on application forms indicating whether certain criminal convictions automatically disqualify candidates from certain positions. If an employer has policies or specific roles where particular criminal convictions are disqualifying factors, this must be explicitly stated on the application form. For example, if a role in financial services requires that an employee have no record of fraud, the application should include a clear statement about this requirement.

By adding this language, employers can transparently communicate to applicants how certain criminal records may impact their eligibility, helping to manage expectations early in the application process. Employers should ensure that their application forms reflect these requirements to comply with the new law.

Compliance Steps for Employers

To meet the requirements of the U.S. Virgin Islands Fair Chance for Employment Act, employers should consider the following actions:

  1. Update Job Applications and Policies: Remove any criminal history questions from applications and clearly state any convictions that automatically disqualify candidates for specific roles.
  2. Train Hiring Managers and HR Staff: Educate all personnel involved in hiring to understand the timing restrictions, individualized assessment requirements, and new application form language. This training can help prevent inadvertent violations.
  3. Develop a Conditional Offer Process: Implement a process for making conditional offers before conducting any background checks or inquiries into criminal history. Employers should clearly define the steps involved in making and, if necessary, revoking a conditional offer.
  4. Document Individualized Assessments: Maintain detailed records of each individualized assessment to support hiring decisions and demonstrate compliance with the Act’s requirements.

Conclusion

The U.S. Virgin Islands Fair Chance for Employment Act represents a meaningful step toward fairer hiring practices by ensuring that applicants with criminal histories are given a genuine opportunity to compete for employment. For employers, compliance requires careful attention to the timing of background checks, the use of individualized assessments, and the inclusion of specific language in application forms regarding criminal records. By updating hiring processes, training staff, and documenting assessments, employers can reduce legal risk, support fair hiring practices, and foster a more inclusive workforce.

 

Fair Screen is a background screening company dedicated to helping employers fairly use criminal records in the hiring process. Contact Us to learn more about how a well-tuned screening process can speed the time to hire, include more job applicants, and help ensure your consistency and compliance. Help us make a difference!

 

 

The foregoing content is not given as legal advice but is instead offered for informational purposes only. Fair Screen is not a law firm and therefore cannot offer legal advice. We always recommend speaking with an attorney who is knowledgeable about your company’s individual circumstances prior to making any hiring decisions or policy changes. Fair Screen makes no assurances regarding the accuracy or completeness of this content.