Editor’s note: This post originally appeared on BakerHostetler’s Employment Law Spotlight blog.
The District of Columbia has passed one of the most stringent ban-the-box laws in the nation. The D.C. law includes the typical prohibition on asking questions about criminal background during the application process, but it also adds a requirement, similar to New York State, that specific factors be considered before a conditional offer of employment is withdrawn. The law has been signed by Mayor Vincent Gray and will take effect after a 30-day period of congressional review and publication in the D.C. register.
Washington, D.C., joins Philadelphia, Seattle, Newark, San Francisco, Baltimore, and Rochester, NY, as cities that prohibit private employers from asking criminal background questions at the application stage. Hawaii, Massachusetts, Minnesota, and Rhode Island have similar state-wide bans. Illinois and New Jersey will join them in early 2015.
The Fair Criminal Record Screening Amendment Act of 2014 applies to all employers who have at least 10 employees in the District of Columbia. The law covers background checks that are performed not only before employment, but also before retention as an independent contractor or as an unpaid intern.
Under the Act, employers may never inquire about an arrest or a criminal accusation that is not pending or did not result in a conviction.
Employers may ask about past criminal convictions, but only after making a conditional offer of employment. Employers in D.C. may no longer ask questions about criminal background in an application or at any point during the interview process.
After a conditional offer is made and the employer obtains the background report, the conditional offer can only be withdrawn if the employer can prove that it has a “legitimate business reason” for doing so. The employer’s determination of a legitimate business reason must be reasonable in light of the following six factors:
(1) The specific duties and responsibilities necessarily related to the employment sought or held by the applicant;
(2) The bearing, if any, of the criminal offense for which the applicant was previously convicted will have on his or her fitness or ability to perform one or more such duties or responsibilities;
(3) The time which has elapsed since the occurrence of the criminal offense;
(4) The age of the applicant at the time of the occurrence of the criminal offense;
(5) The frequency and seriousness of the criminal offense; and
(6) Any information produced by the applicant, or produced on his or her behalf, in regard to his or her rehabilitation and good conduct since the occurrence of the criminal offense.
Employers may still attach additional conditions to the conditional offer, such as proof of eligibility to work or passing a pre-employment physical, so long as those conditions are expressly communicated to the applicant at the time of the conditional offer.
Applicants who believe that their employment was denied on the basis of the criminal conviction may request, within 30 days after the adverse action, that the employer provide the applicant with a copy of all records obtained by the employer in consideration of the applicant, including (but not necessarily limited to) criminal records, and a notice that advises the applicant of his or her opportunity to file an administrative complaint with the Office of Human Rights.
The Office of Human Rights is the only entity authorized to investigate violations and to impose penalties. There is no private right of action available in court. Penalties include fines up to $5,000, the amount of which is dependent on the number of employees. The $5,000 fines are reserved for employers who have 100 or more employees. For any fine imposed, half of the fine is awarded to the complainant.
The Act does not apply in the following situations:
(1) Where a federal or district law or regulation requires the consideration of an applicant’s criminal history for the purposes of employment;
(2) To a position designated by the employer as part of a federal or district government program or obligation that is designed to encourage the employment of those with criminal histories; or
(3) To any facility or employer that provides programs, services, or direct care to minors or vulnerable adults.
Employers with operations in Washington, D.C., should revise their employment applications, educate their interviewing managers, and prepare to promptly comply with this new law, which is likely to take effect before the end of the year.