On June 24, 2011 the Puerto Rico House of Representatives approved Senate Bill 1730 which, if signed by the Governor, will provide individuals with past criminal records the same protection against employment discrimination as provided to other covered groups under Puerto Rico’s General Antidiscrimination in Employment Act, Commonwealth Law No. 100 of June 30, 1959, as amended. The Bill will soon be sent to the Governor, who may sign or veto the measure (expressly or by pocket veto).

The Bill amends Law No. 100 to protect individuals that have committed criminal offenses and misdemeanors from being unreasonably denied employment merely because of their prior conviction(s). This is accomplished by treating the condition of “ex-convict” as a “social condition,” a group presently protected from discrimination under Puerto Rico’s constitution and Law No. 100. In doing so, the Bill adopts the position of a concurring opinion in Puerto Rico Supreme Court’s tied judgment in Rosario Díaz v. Toyota de P.R., 116 D.P.R.1 (2005).

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In Rosario, the justices were equally divided on whether Puerto Rico’s prohibition against discrimination “on the basis of social condition” prohibits an employer from rejecting a job applicant due to his criminal record. The Court’s inability to issue a majority opinion maintained the Court of Appeal’s decision, which concluded that an employer’s refusal to hire a job applicant due to its policy against hiring individuals with criminal records violated Puerto Rico’s constitutional protection against discrimination based on the social condition of the individual.

The Bill acknowledges that ex-convicts carry with them a social stigma similar to other disadvantaged “social conditions.” The Bill finds that in most instances the ex-convict status negatively affects them throughout their lives.

Ironically, one of the co-authors of the Bill is former senator Héctor Martínez Maldonado, who resigned his seat after being convicted of bribery by a federal jury on March 8, 2011.

If the Bill becomes law, employers will no longer be allowed to broadly refuse to hire (or reinstate) anyone with a prior criminal record. Instead, if an employer intends to consider such a factor, a refusal to hire or rehire must be reasonably based after weighing the following considerations, among others: (1) the nature and seriousness of the offense (this is not in the Bill but appears in the cited Rosario Díaz opinion); (2) the relationship between the offense, the employment sought and the duties and responsibilities of the position; (3) applicant’s rehabilitation, including any information the applicant or a third party may provide regarding same; (4) the circumstances under which the offense took place, including any mitigating conditions; (5) the applicant’s age when the offense occurred; (6) the time transpired between the conviction and the job application or reinstatement request; and (7) the employer’s legitimate interest in protecting its property, safety and well-being, as well as that of its employees and the general public.

Violations for unreasonably refusing to hire an ex-convict may expose the employer to payment of double the damages suffered by the applicant and having to hire the rejected applicant, plus litigation costs. Further, Law No. 100 violations are classified as misdemeanors punishable by a fine no lower than $500 or higher than $2,000 and/or imprisonment for up to 6 months.

Although the Bill’s stated purpose is to ban employers from unreasonably rejecting ex-convicts’ job applications, the text of the Bill goes further. Since it includes ex-convicts within the protected category of