Guam § 6102 - General Policy.

§ 6102. General Policy.

(a) An employer shall not request that a police clearance or a court

clearance be provided as part of the application for employment;

however, upon a conditional offer, an employer may request an

employee provide evidence as to any pending criminal cases or criminal

history, in accordance with this Chapter.

(b) For purposes of this Chapter, The Guam Police Department

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, whether it has been

expunged or not, and whether or not it was dismissed with prejudice or

without prejudice, except to the person whose record 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 criminal cases which

resulted in dismissal, expungement, sealing, or did not result in a

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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 criminal 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 requires the

consideration of an applicant’s criminal history for the purpose of

employment;

(2) to any position designated by the employer as part of a

federal or local government position or obligation that is designed to

encourage the employment of those with criminal histories; 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 determination of a

legitimate business reason must also be reasonable in light of the

following factors:

(1) the specific duties and responsibilities necessarily related

to the employment sought or held by the person;

(2) the bearing, if any, that the open criminal case or criminal

history will have on the applicant’s fitness or ability 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 pending criminal

case or criminal history;

(5) the frequency and severity of the pending criminal case or

criminal history; and

(6) any information produced by the person, or produced on

his/her behalf, in regard to his/her rehabilitation and good conduct

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since the occurrence of the pending criminal case or criminal

history.

(g) If an applicant’s conditional offer is terminated or an adverse

action is taken against an applicant on the basis of 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 employer in

consideration of the applicant or employee, including criminal

records; and

(2) a written Statement of Denial which:

(A) articulates a legitimate business reason for the 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 Department of

Labor.

(3) Failure to provide a written Statement of Denial upon

request as set forth in this Subsection shall create a rebuttable

presumption that no legitimate business reason exists for denying

the applicant employment or taking an adverse action against an

employee on the basis of a criminal history.