Vermont ban-the-box law: 21 V.S.A. 495j for recruiters

Vermont's ban-the-box law, 21 V.S.A. section 495j, says an employer may not request criminal history record information on its initial employee application form. The employer may ask during an interview, or once the candidate has been deemed otherwise qualified. If it asks, and the candidate is still legally eligible for the job, it must give the candidate a chance to explain the record and the circumstances, including rehabilitation. The law covers private and public employers with even one person working for them in Vermont, and their agents. Each violation carries a civil penalty of up to $100.

The statute

Section 495j was added by 2015, No. 81 (Adj. Sess.), effective July 1, 2017. It sits in the fair employment practices subchapter of Title 21, chapter 5. Its parts:

• (a) The rule. Except as provided in (b), "an employer shall not request criminal history record information on its initial employee application form. An employer may inquire about a prospective employee's criminal history record during an interview or once the prospective employee has been deemed otherwise qualified for the position."
• (b) The exception. An employer may ask about criminal convictions on the initial application if the applicant is applying for a position for which a federal or state law or regulation creates a mandatory or presumptive disqualification based on a conviction, or the employer or an affiliate is subject to a legal obligation not to employ people convicted of certain offenses, and the questions are limited to the types of offenses creating the disqualification or obligation. The exception still applies if the law allows a waiver.
• (c) The chance to explain. If an employer inquires, the prospective employee, "if still eligible for the position under applicable federal or State law, must be afforded an opportunity to explain the information and the circumstances regarding any convictions, including postconviction rehabilitation."
• (d) The penalty. A civil penalty of up to $100.00 for each violation.
• (e) Definitions. "Criminal history record" has the meaning in 20 V.S.A. 2056a; "employee" and "employer" have the meanings in 21 V.S.A. 495d.

Who is covered

Section 495d defines an employer as "any individual, organization, or governmental body," listing partnerships, corporations, associations and others, "and any agent of such employer, that has one or more individuals performing services for it within this State." So there is no size threshold, the law is not limited to public employers, and agents are inside the definition.

What is allowed at each stage

The prohibition in (a) is tied to the "initial employee application form." Read with the permission that follows, the practical line is the interview or a finding that the candidate is otherwise qualified. The statute does not define "interview," so whether a recruiter's phone screen counts is not settled in the text. Most desks avoid the question by keeping criminal history out of the screen and leaving it to the client.

Individualized assessment and notices

Vermont's statute does not list factors to weigh or require a written preliminary notice. Its one procedural requirement is subsection (c): the opportunity to explain. It applies whenever the employer inquires and the candidate is "still eligible for the position under applicable federal or State law." The statute does not set a form, a deadline or a waiting period, so the employer has to choose a process that gives a real chance to respond. A reasonable approach is to treat the explanation as part of the same review you would do under the EEOC's guidance (the nature and gravity of the offense, the time elapsed, the nature of the job) and to keep a record that the candidate was asked.

Staffing agencies and recruiters

Because "employer" includes "any agent of such employer," an agency running the early stage of a Vermont client's process is covered when it handles applications. An agency is also an employer in its own right for the people it places. In practice:

• Take criminal history questions off the agency's registration form for Vermont candidates, unless the role meets the subsection (b) test and the question is limited to the disqualifying offenses.
• Leave conviction questions to the client's interview or later, and agree who will give the candidate the chance to explain.

Penalties and enforcement

Subsection (d) sets a civil penalty of up to $100 per violation. The subchapter's enforcement section, 21 V.S.A. 495b, lets the Attorney General or a State's Attorney enforce the subchapter by restraining prohibited acts, seeking civil penalties, obtaining assurances of discontinuance and conducting civil investigations, using the procedures of Vermont's consumer protection law. Section 495b(b) also gives aggrieved persons a right of action for violations of the subchapter; we did not confirm how courts have applied that to 495j.

How it fits with FCRA adverse action

If a screening company runs the check, the FCRA's 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 final adverse action notice. Vermont's opportunity to explain fits naturally into the FCRA waiting period: send the pre-adverse notice, invite an explanation including rehabilitation, and review it before deciding. See the FCRA background check process and background check notification emails.

What section 495j does not cover

Several things recruiters expect from other states' laws are not in Vermont's statute, and it is worth being precise about them rather than importing rules from elsewhere:

• No conditional offer rule. The line is the interview or an otherwise-qualified finding, not an offer.
• No job ad rule. Unlike Maine's section 600-A, 495j does not mention advertisements. "Clean record" language is still a poor idea, because it signals that the employer will not consider candidates it may be required to give a chance to explain.
• No list of records that may never be considered. The statute does not separately address arrests, sealed records or expunged records; we did not review other Vermont laws on those records for this page.
• No written notice or waiting period. The only procedural step is the opportunity to explain in subsection (c).

Cities and towns may add their own rules, and federal contractors have the federal Fair Chance Act. We did not check Vermont local ordinances for this page.

How Vermont compares with its neighbors

A desk that covers northern New England can run one process for all three: no criminal history on the application or in ads, nothing on the recruiter screen, and an explanation step built into the employer's review.

A script for Vermont screens

The candidate volunteers a conviction

"Thanks for telling me. It isn't part of my screening and I won't note it. If the employer looks at background later, you'll have a chance to explain."

The candidate asks whether a record rules them out

"I can't make that call, and it isn't part of this conversation. In Vermont, if an employer asks about a record, it has to give you an opportunity to explain the circumstances, including what you've done since."

The client wants a conviction question on the application

"Vermont only allows that on an initial application when a law disqualifies people with certain convictions from the role, and only for those offenses. Which law applies here?"

A Vermont checklist for recruiting desks

1. Remove criminal history questions from initial applications and intake forms for Vermont roles.
2. Document any subsection (b) exception and limit the question to the disqualifying offenses.
3. Keep criminal history out of recruiter screens and submittals. See what not to write in interview notes.
4. Agree with the client who gives the candidate the opportunity to explain, and how it is recorded.
5. For neighboring rules and the federal picture, see ban-the-box laws and interview questions, Massachusetts and Maine, whose statute uses very similar wording.