Rhode Island ban-the-box law: the first interview rule

Rhode Island's ban-the-box law is subsection (7) of R.I. Gen. Laws section 28-5-7, part of the state's Fair Employment Practices Act. It makes it an unlawful employment practice for an employer with four or more employees to ask, on an application or otherwise, orally or in writing, whether an applicant has ever been arrested, charged with or convicted of any crime. The employer may ask about criminal convictions "at the first interview or thereafter." Arrests and charges stay off limits. The law covers private employers and government, and anyone acting in an employer's interest, which is where recruiters come in.

The statute

Section 28-5-7(7) makes it an unlawful employment practice "for any employer to include on any application for employment, except applications for law enforcement agency positions or positions related to law enforcement agencies, a question inquiring or to otherwise inquire either orally or in writing whether the applicant has ever been arrested, charged with or convicted of any crime." Three provisos follow:

1. (i) Mandatory or presumptive disqualifications. If a federal or state law or regulation creates a mandatory or presumptive disqualification based on conviction of specified offenses, the employer may ask whether the applicant has been convicted of those offenses.
2. (ii) Bonds. If a standard fidelity bond or equivalent bond is required for the position and conviction of specified offenses would disqualify the applicant from obtaining it, the employer may ask about those offenses.
3. (iii) The first interview. "Notwithstanding, any employer may ask an applicant for information about his or her criminal convictions at the first interview or thereafter, in accordance with all applicable state and federal laws."

Note what the first interview proviso unlocks: questions about convictions. It does not mention arrests or pending charges, so the general prohibition on asking about those is not lifted by the interview.

Who is covered

Section 28-5-6 defines an employer to include "the state and all political subdivisions of the state and any person in this state employing four (4) or more individuals, and any person acting in the interest of an employer directly or indirectly." This is not a public-only law. A private company with four employees in Rhode Island is covered, and so is a recruiter or agency acting in its interest.

What is allowed at each stage

The statute does not define "first interview." Whether a recruiter's phone screen counts is not answered in the text, and we found no Rhode Island guidance on it. If the screen is not the employer's first interview, a conviction question on the screen is an inquiry before the first interview. The safer practice is to treat the recruiter screen as pre-interview and leave conviction questions to the employer.

Individualized assessment and notices

Section 28-5-7(7) is a timing rule. It does not require an individualized assessment, a written preliminary notice or a response period before a conviction-based decision. Those steps come from elsewhere: the federal FCRA when a screening company supplies a report, and Title VII and the EEOC's guidance on arrest and conviction records, which asks employers to consider the nature and gravity of the offense, the time elapsed and the nature of the job.

Staffing agencies and recruiters

The phrase "any person acting in the interest of an employer directly or indirectly" brings an agency into the client's obligation when it screens for that client. Chapter 28-5 also defines an employment agency as anyone who, "with or without compensation," procures opportunities to work or procures, recruits, refers or places employees. For agency desks:

• Remove arrest, charge and conviction questions from the agency's own registration forms for Rhode Island candidates, unless a documented disqualification or bond exception applies to a specific role.
• Do not ask on the screen. Leave conviction questions to the client's first interview or later.
• Agree with the client who orders any background check and who sends FCRA notices.

Penalties and enforcement

Violations of section 28-5-7 are unlawful employment practices handled by the Rhode Island Commission for Human Rights. Under section 28-5-17, an aggrieved individual or a qualifying organization may make a charge to the commission, which may investigate when the practice occurred within one year, and then tries to resolve it by conference, conciliation and persuasion before further proceedings. The ban-the-box subsection sets no fixed fine of its own, and we have not listed remedy amounts because we did not verify how the chapter's remedy provisions apply to it.

How it fits with FCRA adverse action

Once the employer is past the first interview and orders a background check, the federal steps apply: a stand-alone disclosure and written authorization, a pre-adverse action notice with a copy of the report and the summary of rights, a reasonable wait, then the adverse action notice. Rhode Island's statute adds no separate state notice. See the FCRA background check process and background check notification emails.

How Rhode Island compares with its neighbors

Questions to settle with a Rhode Island client at intake

• How many people does the client employ? Under four, section 28-5-7(7) does not apply, though federal law and good practice still point the same way.
• Is the role a law enforcement agency position or related to one? Those applications are outside the rule.
• Does a federal or state law create a mandatory or presumptive disqualification for specific offenses in this role? If so, which offenses, so any application question is limited to them.
• Is a fidelity or equivalent bond required, and which convictions would block it?
• What is the client's first interview, and who conducts it? That is the earliest point a general conviction question can be asked.
• Who orders the background check, and who sends the FCRA notices?

Writing the answers into the job order protects both sides. If a candidate later complains that they were asked about a record too early, the agency can show what the client said about exceptions and who asked what, when.

A script for Rhode Island screens

Candidate volunteers a past arrest: "Thanks for telling me. That isn't something I ask about or record. Let's keep going with the role."

Candidate asks if they'll be asked about a record: "Not by me. In Rhode Island, an employer can ask about convictions at its first interview or later, and if there's a background check you'll be asked to authorize it first."

Client asks you to collect conviction information on the screen: "Rhode Island doesn't allow that before the first interview, and we act in your interest on the screen. If a law disqualifies people with specific convictions from this role, tell me which, and we can limit a question to those offenses."

A Rhode Island checklist for recruiting desks

1. Confirm the client has four or more employees, and note that government employers are covered too.
2. Strip arrest, charge and conviction questions from applications and pre-interview questionnaires.
3. Document any disqualification-law or bond exception, and limit the question to the specified offenses.
4. Keep volunteered details out of notes and submittals. See what not to write in interview notes.
5. For other states' rules and federal guidance, see ban-the-box laws and interview questions.