Chapter 6

22 GCA B USINESS REGULATIONS CH. 6 FAIR CHANCES HIRING PROCESS ACT 1 CHAPTER 6 FAIR CHANCES HIRING PROCESS ACT SOURCE: Entire chapter added by P.L. 34-022:2 (July 17, 20 17), effective 210 days after enactment. 2017 NOTE: As enacted, this chapter included article designat ions, as follows: Article 1 'General Provisions' for §§ 6101 -6102; Article 2 Guam Department of Labor Administration and Enforcement Role' for §§ 6103- 6105; Article 3 'Employer Protections and Incentive s' for §6106; and Article 4 'Miscellaneous Provisions' for §§ 6107-6108. The article designations were omitted by the Compiler pursuant to the author ity of 1 GCA § 1606. § 6101. Definitions. § 6102. General Policy. § 6103. Complaint Process. § 6104. Administrative Responsibilities. § 6105. Reporting Requirements. § 6106. Negligent Hiring Immunity. § 6107. Severability. § 6108. Effective Date. § 6101. Definitions. As used in this Chapter: (a) Applicant means any person considered for, or who requests to be considered for, employment by an emp loyer; or, any employee considered for, or who requests to be cons idered for, another employment position, by the employer.

considered for, or who requests to be considered for, employment by an emp loyer; or, any employee considered for, or who requests to be cons idered for, another employment position, by the employer. (b) Arrest means being apprehended, detained, taken into custody, held for investigation, or restrained by a law enforcement agency due to an accusation or suspicion that a per son committed a crime. (c) Conditional offer of employment means an oral or written offer by an employer to employ an individual in a j ob, or placement in a staffing agency’s staffing pool, that is condi tioned solely on the employer’s evaluation of the individual’s criminal history. (d) Criminal history means any conviction, plea of nolo contendere, or deferred adjudication arising from f elony criminal accusation, or any misdemeanor criminal accusation, made under COL1128201722 GCA B USINESS REGULATIONS CH. 6 FAIR CHANCES HIRING PROCESS ACT 2 local or federal law, or a comparable law of a stat e of the United States. This does not include dismissed, expunged, or sealed cases. (e) Employer means any person, company, corporation, general contractor, firm, labor organization, or as sociation, including the

d States. This does not include dismissed, expunged, or sealed cases. (e) Employer means any person, company, corporation, general contractor, firm, labor organization, or as sociation, including the government of Guam, that employs more than fifteen (15) employees in Guam. (f) Employment means any occupation, vocation, job, or work for pay, including temporary or seasonal work, cont racted work, contingent work, and work through the services of a temporary or other employment agency; or, any form of vocational or educational training with pay, where the physical location of t he employment is in whole or in substantial part, within Guam. (g) Inquiry means any direct or indirect conduct intended to gather criminal history information from or about t he applicant, candidate, or employee, using any method, including application forms, interviews, and criminal history or backgrou nd checks. (h) Interview means any direct contact by the employer with the applicant in person, or by telephone or video-t eleconferencing, to discuss the employment being sought or the appli cant’s qualifications. § 6102. General Policy.

ct contact by the employer with the applicant in person, or by telephone or video-t eleconferencing, to discuss the employment being sought or the appli cant’s qualifications. § 6102. General Policy. (a) An employer shall not request that a police clearance or a court clearance be provided as part of the application fo r employment; however, upon a conditional offer, an employer may request an employee provide evidence as to any pending crimina l cases or criminal history, in accordance with this Chapter. (b) For purposes of this Chapter, The Guam Police D epartment and the Superior Court of Guam shall not reveal any information concerning an arrest that did not result in a filed criminal case, or concerning a court case that has been dismissed, wh ether it has been expunged or not, and whether or not it was dismisse d with prejudice or without prejudice, except to the person whose recor d it is, or to a licensed attorney representing that person, or upon order of the Court. (c) An employer shall not make any inquiry about, or require the disclosure of, an applicant’s arrest record or crim inal cases which resulted in dismissal, expungement, sealing, or did not result in a

) An employer shall not make any inquiry about, or require the disclosure of, an applicant’s arrest record or crim inal cases which resulted in dismissal, expungement, sealing, or did not result in a COL1128201722 GCA B USINESS REGULATIONS CH. 6 FAIR CHANCES HIRING PROCESS ACT 3 conviction. This prohibition, however, shall not apply into inquiry about pending criminal cases against the applicant, which may be inquired about according to the guidelines below. (d) An employer may only inquire about or require the disclosure of an applicant’s criminal history or pending crimi nal cases after or upon making a conditional offer of employment. (e) The prohibition of this Section shall not apply: (1) where any federal or local law or regulation re quires the consideration of an applicant’s criminal history fo r the purpose of employment; (2) to any position designated by the employer as p art of a federal or local government position or obligation that is designed to encourage the employment of those with criminal his tories; or (3) to any position which requires that employee to work in close proximity of or provides programs, services, or direct care to minors.

encourage the employment of those with criminal his tories; or (3) to any position which requires that employee to work in close proximity of or provides programs, services, or direct care to minors. (f) Following the extension of a conditional offer of employment, an employer may only withdraw the conditional offer to an applicant for a legitimate business reason. The employer’s deter mination of a legitimate business reason must also be reasonable in light of the following factors: (1) the specific duties and responsibilities necess arily related to the employment sought or held by the person; (2) the bearing, if any, that the open criminal cas e or criminal history will have on the applicant’s fitness or abi lity to perform one (1) or more such duties and responsibilities; (3) the time which has elapsed since the occurrence of the pending criminal case or criminal history; (4) the age of the person at the time of the pendin g criminal case or criminal history; (5) the frequency and severity of the pending crimi nal case or criminal history; and (6) any information produced by the person, or prod uced on his/her behalf, in regard to his/her rehabilitation and good conduct

cy and severity of the pending crimi nal case or criminal history; and (6) any information produced by the person, or prod uced on his/her behalf, in regard to his/her rehabilitation and good conduct COL1128201722 GCA B USINESS REGULATIONS CH. 6 FAIR CHANCES HIRING PROCESS ACT 4 since the occurrence of the pending criminal case o r criminal history. (g) If an applicant’s conditional offer is terminat ed or an adverse action is taken against an applicant on the basis o f the pending criminal case or criminal history, the applicant may request that the employer provide the applicant within thirty (30) days: (1) a copy of any and all records procured by the e mployer in consideration of the applicant or employee, includi ng criminal records; and (2) a written Statement of Denial which: (A) articulates a legitimate business reason for th e denial; (B) specifically demonstrates consideration of each of the factors set forth in Subsection (d) of this Section ; and (C) advises the applicant of his or her opportunity to file an administrative complaint with the Guam Departmen t of Labor. (3) Failure to provide a written Statement of Denia l upon request as set forth in this Subsection

nt of his or her opportunity to file an administrative complaint with the Guam Departmen t of Labor. (3) Failure to provide a written Statement of Denia l upon request as set forth in this Subsection shall create a rebuttable presumption that no legitimate business reason exis ts for denying the applicant employment or taking an adverse actio n against an employee on the basis of a criminal history. § 6103. Complaint Process. (a) A person claiming to be aggrieved by a violati on of this Chapter may file an administrative complaint with t he Guam Department of Labor (Department), in accordance with procedure s set forth by the Department. (b) The administrative remedies outlined in Subsect ion (a) of this Section are exclusive. A person claiming to be agg rieved by a violation of this Chapter shall not have a private cause of action in any court based on a violation of this Chapter. (c) Any administrative complaint made under the pro visions of this Chapter must be made within ninety (90) days o f notification of denial of employment by an employer. § 6104. Administrative Responsibilities. COL1128201722 GCA B USINESS REGULATIONS CH.

ions of this Chapter must be made within ninety (90) days o f notification of denial of employment by an employer. § 6104. Administrative Responsibilities. COL1128201722 GCA B USINESS REGULATIONS CH. 6 FAIR CHANCES HIRING PROCESS ACT 5 (a) The Guam Department of Labor shall develop administrative rules and regulations in accordance with outlining the procedures by which it will accept, investigate, and adjudicate c omplaints of Fair Chances Hiring Process Act violations, and the enfo rcement of provisions of the Act. All rules and regulations shall comply with the Administrative Adjudication Law, as required in Cha pter 9 of Title 5, Guam Code Annotated. (1) The Director of Labor shall be the Hearing Officer in any appeals relative to enforcement actions initiated b y the Fair Employment Practice Office. (2) The Fair Employment Practice Office shall have all necessary enforcement and investigative powers to e nforce provisions of this Act. (3) The Department may refer any unpaid penalties t o the Department of Revenue and Taxation, or other approp riate licensing entities, who shall require that all penalties under this Act be paid in full before renewing a business license.

penalties t o the Department of Revenue and Taxation, or other approp riate licensing entities, who shall require that all penalties under this Act be paid in full before renewing a business license. (b) In the development and application of rules and regulations, the Department shall take into consideration penalties ranging from tra ining, retraining, written warning, and financial penaltie s. The Guam Department of Labor is hereby authorized to issue f ines for violations of this Act in accordance with the following monetary caps: (1) for employers that employ fifteen (15) to thirt y (30) employees, a fine of up to, but not more than, One Thousand Dollars ($1000.00) per violation; (2) for employers that employ thirty-one (31) to ni nety-nine (99) employees, a fine of up to, but not more than, Two Thousand Dollars ($2000.00) per violation; and (3) for employers that employ one hundred (100) or more employees, or for any government of Guam agency, a fine of up to, but not more than, Four Thousand Dollars ($4000.00) per violation. (c) The Guam Department of Labor may develop a trai ning program and/or a plan for providing training resour ces for employers and their

not more than, Four Thousand Dollars ($4000.00) per violation. (c) The Guam Department of Labor may develop a trai ning program and/or a plan for providing training resour ces for employers and their representatives, such as hiring authorities o r human resource officers. The program may include a mandatory posti ng in each COL1128201722 GCA B USINESS REGULATIONS CH. 6 FAIR CHANCES HIRING PROCESS ACT 6 employer’s premises, developed by the Department, w hich notifies employees of this Act and other labor laws. (d) Any penalty fines for violations of this Act shall be collected by the Department of Labor. Fines collected by the Department under the provisions of this Section shall be deposited in the Manpower Development Fund to be employed exclusively for the training programs and enforcement operations within the Fair Employme nt Practice Office. The Director of Labor shall submit an annual report of all expenditures and activities under this Subsection to I Liheslatura (the Legislature). (e) An employer may request for an advisory opinion from the Fair Employment Practice Office with regards to a specif ic situation related to this Act; provided, however, that the Director may

ture). (e) An employer may request for an advisory opinion from the Fair Employment Practice Office with regards to a specif ic situation related to this Act; provided, however, that the Director may decline to entertain such requests at his or her discretion. § 6105 Reporting Requirements. (a) The Guam Department of Labor Compliance Office shall maintain data on the number of complaints filed pur suant to this Act, demographic information on the complainants, the nu mber of investigations it conducts, and the disposition of every complaint and investigation, complete with a summary as to the De partment’s compliance with its rules and regulations. (b) In the event that an employer is found to have more than one (1) violation of this Act, the Guam Department of L abor Compliance Office shall post the name of the employer on the Guam Departme nt of Labor official website. Employers found to be in vi olation of this Act shall not be posted for their first violation, but shall be posted for all subsequent violations. The names of applicants impa cted by an employer violation shall not be named.

vi olation of this Act shall not be posted for their first violation, but shall be posted for all subsequent violations. The names of applicants impa cted by an employer violation shall not be named. This posting shall be made on the Guam Department of Labor official website, and shall include the date of the violation. Violating employers shall be listed on the official website for a period of seven (7) years after they are found in v iolation, and removed after that time period. (c) Data maintained by the Guam Department of Labor regarding Subsection (a) of this Section shall be posted on its official website annually beginning one (1) year from the effective date of the Fair Chances Hiring Process Act. § 6106. Negligent Hiring Immunity. COL1128201722 GCA B USINESS REGULATIONS CH. 6 FAIR CHANCES HIRING PROCESS ACT 7 (a) A cause of action may not be brought against a n employer for negligently hiring or failing to adequately supervi se an employee, based on evidence that the employee has a pending crimina l case or criminal history. (b) This Section does not preclude a cause of actio n for negligent hiring or the failure of an employer to provide ade quate supervision of an

loyee has a pending crimina l case or criminal history. (b) This Section does not preclude a cause of actio n for negligent hiring or the failure of an employer to provide ade quate supervision of an employee, if: (1) the employer knew or should have known of the p ending criminal case or criminal history; and (2) the employee was convicted of an offense that w as committed while performing duties substantially sim ilar to those reasonably expected to be performed in the employme nt, or under conditions substantially similar to those reasonabl y expected to be encountered in the employment, taking into consider ation the factors listed in § 6102(d) of Article 1 of this Ch apter. (c) This Section does not create a cause of action or expand an existing cause of action. § 6107. Severability. If any provision of this Act or its application to any person or circumstance is found to be invalid, or contrary to law, such invalidity shall not affect other provisions or applications of this Ac t that can be given effect without the invalid provision or appli cation, and to this end the provisions of this Act are severable. § 6108. Effective Date.

other provisions or applications of this Ac t that can be given effect without the invalid provision or appli cation, and to this end the provisions of this Act are severable. § 6108. Effective Date. This Act shall be effective two hundred ten (210) days after enactment. -------- COL11282017