An Act To Enact the Maine Fair Chance Employment Act
Maine Legislature, Session 128, LD 1566
Committee: Labor, Commerce, Research and Economic Development
Sponsors: TALBOT ROSS, DeCHANT, VOLK, HICKMAN, HYMANSON, VACHON, WARREN, BELLOWS, CHIPMAN, DION, SAVIELLO
Amends: 5 MRSA §5301, 5 MRSA §5302, 5 MRSA §5303, 5 MRSA §5305, 5 MRSA §5306, 5 MRSA §4611, 5 MRSA §4635

Legislative Document
No. 1566
H.P. 1079
House of Representatives, May 2, 2017
An Act To Enact the Maine Fair Chance Employment Act
Reference to the Committee on Labor, Commerce, Research and Economic Development 
suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative TALBOT ROSS of Portland.
Cosponsored by Representative DeCHANT of Bath, Senator VOLK of Cumberland and
Representatives: HICKMAN of Winthrop, HYMANSON of York, VACHON of Scarborough, 
WARREN of Hallowell, Senators: BELLOWS of Kennebec, CHIPMAN of Cumberland, 
DION of Cumberland, SAVIELLO of Franklin.
Be it enacted by the People of the State of Maine as follows: 
PART A 
Sec. A-1.  5 MRSA §5301, as amended by PL 2011, c. 286, Pt. O, §1 and PL 
2015, c. 429, §23, is further amended to read: 
§5301.  Eligibility for occupational license, registration or permit 
1.  Effect of criminal history record information respecting certain convictions.  
Subject to subsection 2 this section and sections 5302 and 5303, in determining eligibility 
for the granting of any occupational license, registration or permit issued by the State, the 
appropriate State state licensing agency may take into consideration criminal history 
record information from Maine or elsewhere relating to certain convictions which that 
have not been set aside, dismissed, sealed or expunged or for which a full and free pardon 
has not been granted, but the existence of such information shall may not operate as an 
automatic bar to being licensed, registered or permitted to practice any profession, trade 
or occupation. 
2.  Criminal history record information that may be considered.  A licensing 
agency may not inquire into or consider the criminal history of an applicant until after the 
applicant has been found to be otherwise qualified for the license, registration or permit.  
A licensing agency may use shall consider only the following in connection with an 
application for an occupational license, registration or permit criminal history record 
information pertaining to the following:  
A.  Convictions for which incarceration for less than one year may be imposed and 
which that involve dishonesty or false statement; 
B.  Convictions for which incarceration for less than one year may be imposed and 
which that directly relate to the profession, trade or occupation for which the license 
or permit is sought; 
C.  Convictions for which no incarceration can be imposed and which directly relate 
to the trade or occupation for which the license or permit is sought; 
D.  Convictions for which incarceration for one year or more may be imposed; or 
E.  Convictions for which incarceration for less than one year may be imposed and 
that involve sexual misconduct by an applicant for massage therapy licensure or a 
licensed massage therapist or an applicant or licensee of the Board of Licensure in 
Medicine, the Board of Osteopathic Licensure, the Board of Dental Practice, the State 
Board of Examiners of Psychologists, the State Board of Social Worker Licensure, 
the Board of Chiropractic Licensure, the State Board of Examiners in Physical 
Therapy, the State Board of Alcohol and Drug Counselors, the Board of Respiratory 
Care Practitioners, the Board of Counseling Professionals Licensure, the Board of 
Occupational Therapy Practice, the Board of Speech, Audiology and Hearing, the 
Radiologic Technology Board of Examiners, the Nursing Home Administrators 
Licensing Board, the Board of Licensure of Podiatric Medicine, the Board of 
Complementary Health Care Providers, the Maine Board of Pharmacy, the Board of 
Trustees of the Maine Criminal Justice Academy, the State Board of Nursing and the 
Emergency Medical Services' Board. 
3.  Criminal history record information directly related to the profession, trade 
or occupation.  In determining pursuant to subsection 2 whether criminal history record 
information is directly related to the profession, trade or occupation for which the license, 
registration or permit is being sought, the licensing agency must consider the following 
factors: 
A.  Whether the conviction is directly related to the duties and responsibilities of that 
position or profession, trade or occupation; 
B.  Whether the position or profession, trade or occupation offers the opportunity for 
the same or a similar offense to occur; 
C.  Whether circumstances leading to the conduct for which the person was convicted 
will recur in the position or profession, trade or occupation; and 
D.  The length of time since the offense occurred. 
4.  Criminal convictions prohibited by statute.  Notwithstanding subsection 2, a 
licensing agency may consider criminal convictions that are explicitly prohibited by 
statute for the license, registration or permit sought. 
Sec. A-2.  5 MRSA §5302, as amended by PL 1989, c. 84, §2, is further amended 
to read: 
§5302.  Denial, suspension, revocation or other discipline of licensees because of 
criminal record 
1.  Reasons for denial or disciplinary action; process.  Licensing agencies may 
refuse to grant or renew, or may suspend, revoke or take other disciplinary action against 
any occupational license, registration or permit based in whole or in part on the basis of 
the criminal history record information relating to convictions denominated in section 
5301, subsection 2, but only if the licensing agency determines has complied with the 
notice requirements of this section and after the licensing agency has properly considered 
a timely appeal of its preliminary determination, if any, and has determined that the 
applicant, licensee, registrant or permit holder so convicted has not been sufficiently 
rehabilitated to warrant the public trust as described in subsection 3.  The applicant, 
licensee, registrant or permit holder shall bear bears the burden of proof that there exists 
sufficient rehabilitation to warrant the public trust. 
2.  Preliminary determination.  The Before a licensing agency may make a final 
decision, the licensing agency shall explicitly state in writing the reasons for a decision 
which prohibits preliminary determination that the applicant, licensee, registrant or permit 
holder should be prohibited from practicing the profession, trade or occupation if that 
decision is based in whole or in part on conviction of any crime described in that may be 
considered pursuant to section 5301, subsection 2.  The licensing agency shall issue a 
notice containing the written preliminary determination to the applicant, licensee, 
registrant or permit holder.  The written notice required by this subsection must include 
the following information: 
A.  The criminal conviction or convictions that are the basis for the preliminary 
denial; 
B.  A copy of the criminal history record information, if any; 
C.  Information about the applicant's, licensee's, registrant's or permit holder's right to 
appeal the preliminary determination; and 
D.  Any examples of mitigation or rehabilitation evidence that the applicant, licensee, 
registrant or permit holder may voluntarily provide. 
3.  Appeal of preliminary determination.  An applicant, licensee, registrant or 
permit holder may appeal a preliminary determination of a licensing agency made 
pursuant to subsection 2 by challenging the accuracy of the criminal history record 
information or by demonstrating that the applicant, licensee, registrant or permit holder is 
sufficiently rehabilitated to warrant the public trust.  An applicant, licensee, registrant or 
permit holder may demonstrate sufficient rehabilitation to warrant the public trust by 
providing the licensing agency: 
A.  Evidence demonstrating that at least one year has elapsed since the applicant's, 
licensee's, registrant's or permit holder's release from any correctional institution 
without criminal conviction or arrest; or 
B.  Any other information or evidence of mitigation or rehabilitation and present 
fitness to practice the profession, trade or occupation for which the license, 
registration or permit is being sought, including, but not limited to, letters of 
reference. 
If the applicant, licensee, registrant or permit holder demonstrates sufficient rehabilitation 
to warrant the public trust, the licensing agency may not deny the applicant, licensee, 
registrant or permit holder the license, registration or permit based in whole or in part on 
the applicant's, licensee's, registrant's or permit holder's prior criminal conviction. 
After receiving notice of the preliminary denial issued pursuant to subsection 2, the 
applicant, licensee, registrant or permit holder must send or hand deliver the appeal 
within 30 business days. 
4.  Final determination.  If the licensing agency has made a final determination that 
the applicant, licensee, registrant or permit holder should be prohibited from practicing 
the profession, trade or occupation because the applicant, licensee, registrant or permit 
holder has not been sufficiently rehabilitated to warrant the public trust as described in 
subsection 3, the licensing agency must notify the applicant, licensee, registrant or permit 
holder in writing of the following: 
A.  The final determination; 
B.  Information about the right to appeal pursuant to section 5304 the licensing 
agency's decision; 
C.  A statement that the applicant, licensee, registrant or permit holder may be 
eligible for a different license, registration or permit; and 
D.  The earliest date on which the applicant, licensee, registrant or permit holder may 
reapply with the licensing agency, if applicable. 
Sec. A-3.  5 MRSA §5303, as amended by PL 2007, c. 369, Pt. A, §2 and affected 
by Pt. C, §5 and amended by PL 2015, c. 429, §23, is further amended to read: 
§5303.  Time limit on consideration of prior criminal conviction 
1.  Three-year limits.  Except as set forth in this subsection and subsection 2, the 
procedures outlined in sections 5301 and 5302 for the consideration of prior criminal 
conviction as an element of fitness to practice a licensed profession, trade or occupation 
shall requiring a license, registration or permit apply within 3 years of the applicant's or, 
licensee's final discharge, if any, from the correctional system, registrant's or permit 
holder's criminal conviction.  Beyond the 3-year period, ex-offender applicants or, 
licensees, registrants or permit holders with no additional convictions are to be 
considered in the same manner as applicants or, licensees, registrants or permit holders 
possessing no prior criminal record for the purposes of licensing decisions.  There is no 
time limitation for consideration of an applicant's or, licensee's, registrant's or permit 
holder's conduct which that gave rise to the criminal conviction if that conduct is 
otherwise a ground for disciplinary action against a licensee, registrant or permit holder. 
2.  Ten-year limits.  For applicants to and licensees and registrants of the Board of 
Licensure in Medicine, the Board of Osteopathic Licensure, the Board of Dental Practice, 
the State Board of Examiners of Psychologists, the State Board of Social Worker 
Licensure, the State Board of Nursing, the Board of Chiropractic Licensure, the Board of 
Trustees of the Maine Criminal Justice Academy, the State Board of Examiners in 
Physical Therapy, the State Board of Alcohol and Drug Counselors, the Board of 
Respiratory Care Practitioners, the Board of Counseling Professionals Licensure, the 
Board of Occupational Therapy Practice, the Board on Speech-language Pathology, 
Audiology and Hearing Aid Dealing and Fitting, the Radiologic Technology Board of 
Examiners, the Nursing Home Administrators Licensing Board, the Board of Licensure 
of Podiatric Medicine, the Board of Complementary Health Care Providers, the Maine 
Board of Pharmacy, and the Emergency Medical Services' Board and applicants for 
massage therapy licensure or licensed massage therapists, the following apply. 
A.  The procedures outlined in sections 5301 and 5302 for the consideration of prior 
criminal conviction as an element of fitness to practice a licensed profession, trade or 
occupation apply within 10 years of the applicant's or licensee's final discharge, if 
any, from the correctional system. 
B.  Beyond the 10-year period, ex-offender applicants or licensees with no additional 
convictions must be considered in the same manner as applicants or licensees 
possessing no prior criminal record for the purposes of licensing decisions. 
C.  There is no time limitation for consideration of a registrant's, an applicant's or 
licensee's conduct that gave rise to the criminal conviction if that conduct is otherwise 
a ground for disciplinary action. 
Sec. A-4.  5 MRSA §5305 is enacted to read: 
§5305.  Confidential 
Criminal history record information, and any other information pertaining to an 
applicant's, licensee's, registrant's or permit holder's background check obtained in 
conjunction with a screening, in the possession of a licensing agency is confidential and 
may not be disclosed if the information is being requested for use in connection with any 
application for employment or a license, registration or permit. 
Sec. A-5.  5 MRSA §5306 is enacted to read: 
§5306.  Application 
The provisions of this chapter apply notwithstanding any provision of law to the 
contrary, except to the extent the provision of law contains additional limitations on the 
consideration of criminal history record information by licensing agencies. 
PART B 
Sec. B-1.  5 MRSA §4611, as amended by PL 2011, c. 613, §18 and affected by 
§29, is further amended to read: 
§4611.  Complaint 
Any aggrieved person, or any employee of the commission, may file a complaint 
under oath with the commission stating the facts concerning the alleged discrimination, 
except that a complaint must be filed with the commission not more than 300 days after 
the alleged act of unlawful discrimination. In addition, any person may file a complaint 
pursuant to section 4632 or section 4635. 
Sec. B-2.  5 MRSA §4635 is enacted to read: 
§4635.  Use of criminal history information 
Any person aggrieved by an employer's or prospective employer's violation of section 
4724, 4725 or 4726 may file a complaint with the commission.  The commission shall 
investigate and review such complaints and shall keep a record of all complaints or other 
contact concerning reports of problems, concerns or suggestions regarding the 
implementation, compliance and impact of chapter 337-D.  The commission shall also 
conduct periodic reviews with private employers to assess compliance with that chapter. 
1.  Civil action by commission.  If the commission finds that a private employer has 
violated section 4725 or section 4726, the employer is subject to: 
A.  For the first violation, a civil penalty not to exceed $1,000; and 
B.  For each subsequent violation, a civil penalty not to exceed $2,000. 
Penalties are collected by the commission in a civil action and must be paid to the 
Treasurer of State for deposit to the General Fund. 
There is a rebuttable presumption that an employer has violated section 4725 or section 
4726 if the employer does not maintain records in compliance with section 4728, or does 
not allow the commission reasonable access to such records, absent clear and convincing 
evidence that the employer has not violated section 4725 or 4726. 
2.  Compliance counseling.  The commission shall provide counseling to a private 
employer it has found to be in violation of chapter 337-D to ensure future compliance 
with that chapter. 
Sec. B-3.  5 MRSA c. 337-D is enacted to read: 
CHAPTER 337-D 
MAINE FAIR CHANCE EMPLOYMENT ACT 
§4721.  Short title 
This chapter may be known and cited as "the Maine Fair Chance Employment Act." 
§4722.  Declaration of policy 
It is the declared public policy of the State to encourage the rehabilitation of criminal 
offenders and to assist them in the resumption of the responsibilities of citizenship by 
increasing opportunities for this population to secure employment and secure licensure in 
order to engage in a meaningful and profitable occupation. 
§4723.  Definitions 
As used in this chapter, unless the context otherwise indicates, the following terms 
have the following meanings. 
1.  Applicant.  "Applicant" means any person requesting consideration or otherwise 
under consideration for a position of employment by an employer or requesting 
consideration of licensure from a licensing authority.  "Applicant" includes any current 
employee requesting consideration for another position of employment with the 
employer. 
2.  Criminal history information.  "Criminal history information" includes criminal 
history record information as defined in Title 16, section 703, subsection 3 and other 
information regarding the criminal history of an applicant, from whatever source. 
3.  Employer.  "Employer" means any person, partnership, firm, association, 
corporation, organization or other legal entity that is located in the State that employs one 
or more individuals, acts directly or indirectly in the interest of an employer or that 
procures employees or opportunities for employment in exchange for compensation.  
"Employer" includes the State and its political subdivisions. 
4.  License.  "License" means any license, permit, certificate, registration or other 
authorization required to engage in an occupation that is granted or issued by the State or 
its political subdivisions. 
5.  Licensing authority.  "Licensing authority" means the person, board, commission 
or department of the State or its political subdivisions with authority to issue a license. 
6.  Licensure.  "Licensure" means the issuing of a license by a licensing authority. 
7.  Occupation.  "Occupation" means any occupation, trade, vocation, profession, 
business or employment of any kind for which a license is required to be issued by the 
State or its political subdivisions. 
8.  Political subdivision.  "Political subdivision" has the same meaning as in Title 
30-A, section 2252. 
9.  State.  "State" means the State, or any office, department, agency, authority, 
commission, board, institution, hospital or other instrumentality of the State, including 
the Maine Turnpike Authority, the Maine Port Authority, the Northern New England 
Passenger Rail Authority, the Maine Community College System, the University of 
Maine System, the Maine Veterans' Homes, the Maine Public Employees Retirement 
System, the Maine Military Authority and all such other state entities. 
§4724.  Limitations on State use and disclosure of criminal history information 
1.  Prohibition.  The State and its political subdivisions may not use the following 
criminal history information in connection with an application for employment: 
A.  Information related to a deferred criminal adjudication, participation in a 
diversion program, an arrest not followed by a criminal conviction or an infraction; 
B.  A criminal conviction that has been dismissed or expunged or for which the 
records have been sealed or for which the individual was pardoned; 
C.  Juvenile adjudications; 
D.  Civil violations; 
E.  Convictions for Class D or Class E crimes for which no sentence of incarceration 
can be imposed; 
F.  Convictions for Class D or Class E crimes that were adjudicated more than one 
year prior, excluding any period of incarceration or custody; or 
G.  Convictions for Class A, Class B or Class C crimes that were adjudicated more 
than 3 years prior, excluding any period of incarceration or custody. 
The State may not discriminate in any way, for the purposes of hiring decisions, between 
applicants with criminal convictions that occurred more than 3 years from the date of 
application and applicants with no prior criminal history information. 
2.  Confidential.  Criminal history information described in subsection 1 that is in the 
possession of the State or its political subdivisions is confidential and may not be 
disclosed if the information is being requested for use in connection with any application 
for employment.  Any information that pertains to an applicant's criminal background 
check obtained in conjunction with an employment decision by the State or its political 
subdivisions is confidential and may not be disclosed unless specifically required by law. 
§4725.  Consideration of criminal history information 
1.  Inquiry only after conditional offer of employment.  An employer may not 
inquire into or consider an applicant's criminal history information until the applicant has 
received a conditional offer of employment.  A person may not be denied employment 
when such denial is based in whole or in part on criminal history information unless that 
criminal history information is directly related to the position of employment or includes 
a criminal conviction that is explicitly prohibited by statute for the position of 
employment. 
2.  Criminal history information directly related.  In determining whether criminal 
history information directly relates to the position of employment pursuant to subsection 
1, the employer shall consider the following factors: 
A.  Whether the criminal history information is directly related to the duties and 
responsibilities of that position or occupation; 
B.  Whether the position or occupation offers the opportunity for the same or a 
similar offense to occur; 
C.  Whether circumstances that is the subject of the conduct that is the subject of the 
criminal history information will recur in the position or occupation; and 
D.  The length of time since the offense occurred. 
§4726.  Employer use of criminal history information 
1.  Preliminary denial of employment.  Before an employer may make a final 
decision to deny an applicant a position of employment based in whole or in part on the 
applicant's prior conviction of a crime, the employer must notify the applicant of its intent 
to deny the employment in writing, including the following information: 
A.  The criminal history information that is the basis for the preliminary denial; 
B.  A copy of the entire criminal history information report, if any; 
C.  Information about the applicant's right to appeal the preliminary denial; and 
D.  Any evidence of mitigation or rehabilitation that the applicant may voluntarily 
provide. 
2.  Appeal of preliminary denial.  An applicant may appeal a preliminary denial of 
employment with the employer by demonstrating mitigation or rehabilitation or by 
challenging the accuracy of the criminal history information.  Mitigation or rehabilitation 
may be demonstrated by providing the employer: 
A.  Evidence demonstrating that at least one year has elapsed since the applicant's 
release from any correctional institution without criminal conviction or arrest; or 
B.  Any other information or evidence of mitigation or rehabilitation and present 
fitness to perform the duties of the position of employment, including, but not limited 
to, letters of reference. 
If the applicant demonstrates mitigation or rehabilitation to the employer, the employer 
may not deny the applicant the position of employment based in whole or in part on the 
applicant's criminal history information.  The employer may not hire another individual 
for the position of employment until after it has made a final employment decision 
pursuant to subsection 3. 
After receiving notice of the preliminary denial issued pursuant to subsection 1, the 
applicant must send or deliver the preliminary appeal within 10 business days. 
3.  Final denial of employment.  If the applicant submits a timely appeal of a 
preliminary denial of employment pursuant to subsection 2, the employer must make its 
employment decision based on an individualized assessment of the information submitted 
by the applicant in light of the factors recommended by the federal Equal Employment 
Opportunity Commission, "Consideration of Arrest and Conviction Records in 
Employment Decisions Under Title VII of the Civil Rights Act of 1964," Enforcement 
Guidance Number 915.002, from April 25, 2012. 
If the employer decides to make a final denial of employment, the employer must notify 
the applicant in writing of the following: 
A.  The final denial; 
B.  The appeal process, if any; 
C.  A statement that the applicant may be eligible for other employment; and 
D.  The earliest date on which the applicant may reapply for a position of 
employment. 
§4727.  State contractors; policy 
It is the policy of the State to do business with only contractors that have adopted and 
comply with written policies, practices and standards that are consistent with the 
requirements of this Act.  State agencies shall review all potential contractors' criminal 
background check policies for consistency with this Act and shall consider criminal 
background check policies and practices among the performance criteria in evaluating 
whether to award a contract to a contractor. 
§4728.  Records 
1.  Retention and creation.  An employer shall retain all application forms, records 
of employment and other pertinent records and information related to compliance with 
this Act for a minimum of 3 years, including, but not limited to, the following records: 
A.  The number of positions of employment requiring criminal background checks; 
B.  For positions of employment requiring criminal background checks, the number 
of applicants and the number of applicants who were provided a conditional offer of 
employment; 
C.  The number of applicants regarding whom the employer was aware of criminal 
history information and: 
(1)  To whom the employer provided a preliminary denial notice pursuant to 
section 4726, subsection 1; 
(2)  Who provided the employer with evidence of mitigation or rehabilitation 
pursuant to section 4726, subsection 2; 
(3)  To whom the employer provided a final denial notice pursuant to section 
4726, subsection 3; and 
(4)  Who were hired; 
D.  Communications with applicants for employment; and 
E.  For the State and its political subdivisions, records of the number of employees in 
positions for which a preemployment criminal background check is not conducted 
who have a criminal conviction.  The State shall create these records through 
regularly conducted confidential and anonymous surveys of its employees. 
2.  Commission access; presumption.  An employer shall allow the Maine Human 
Rights Commission access to all pertinent records and information for the purpose of 
monitoring compliance with this Act.  There is a rebuttable presumption that an employer 
has not complied with this Act if the employer does not maintain records in compliance 
with this section, or does not allow the Maine Human Rights Commission reasonable 
access to such records, absent clear and convincing evidence of compliance with this Act. 
§4729.  Violation by a private employer 
1.  Maine Human Rights Commission.  An individual who is aggrieved by a private 
employer's violation of this chapter may file a complaint with the Maine Human Rights 
Commission pursuant to section 4635.  A private employer who violates section 4725 or 
section 4726 is subject to the penalties in section 4635, including a civil penalty of up to 
$1,000 for the first violation and $2,000 for each subsequent violation. 
2.  Civil action.  An aggrieved individual may bring a civil action in a court of 
competent jurisdiction against a private employer that has violated section 4725 or 
section 4726 and, upon prevailing, is entitled to such legal or equitable relief as the court 
may determine appropriate and reasonable attorney's fees and costs. 
§4730.  Violation by a public employer 
An individual who is aggrieved by a violation of section 4724, section 4725 or 
section 4726 by the State or its political subdivisions may file a complaint with the Maine 
Human Rights Commission pursuant to section 4635, but such public employers are not 
subject to civil penalties pursuant to that section.  An individual may not bring a civil 
action pursuant to section 4729, subsection 2 against the State or its political 
subdivisions. 
The Director of Human Resources shall conduct a periodic audit to review the State's 
hiring practices in an effort to ensure that individuals with criminal convictions are not 
unreasonably denied employment with the State. 
§4731.  Application 
The provisions of this Act apply notwithstanding any provision of law to the 
contrary, except to the extent the provision of law contains additional limitations on the 
consideration of criminal history information of applicants for employment. 
SUMMARY 
This bill enacts the Maine Fair Chance Employment Act and adds restrictions to the 
use of criminal history information in the context of employment decisions by private 
employers and the State and its political subdivisions and of licensing decisions by 
licensing agencies. 
It prohibits an employer from asking an applicant for employment to disclose 
information concerning the applicant's criminal history, or considering such information, 
until after the applicant has received a conditional offer of employment.  It restricts the 
way a private employer, or the State and its political subdivisions, may use criminal 
history information in the course of making employment decisions and adds similar 
restrictions to the existing restrictions applicable to licensing agencies' consideration of 
criminal history information.  It also makes certain criminal history information in the 
possession of the State and its political subdivisions confidential and makes all criminal 
background check information obtained by the State in connection with an employment 
decision confidential. 
The Maine Human Rights Commission is charged with enforcement of the Maine 
Fair Chance Employment Act and may seek civil penalties against a private employer for 
a violation of $1,000 for the first violation and $2,000 for each subsequent violation. 
The bill also creates a private right of action that may be brought by an affected 
individual against a private employer that has violated the Maine Fair Chance 
Employment Act and, upon prevailing, the affected individual is entitled to such legal or 
equitable relief as the court may determine appropriate and reasonable attorney's fees and 
costs.