The primary initiative of the “Ban the Box” nationwide campaign is to persuade employers to remove the “check box” asking applicants if they have a criminal record from their hiring applications. The purpose of the initiative is to enable former offenders to display their qualifications in the hiring process before being asked about their criminal histories.

Many private employers have criticized the campaign, predominantly out of fear that that they will be exposed to employment discrimination lawsuits from unsuccessful applicants. Additionally, there are growing concerns that ban-the-box policies will affect employers’ obligations to maintain safe workplaces and avoid negligent hiring.

Advocates for the legislation assert that barring these individuals from employment may deprive many Americans of the potential for economic stability. Advocates contend that giving a former offender a chance to be a productive citizen benefits both the former offender and society as a whole. Thus, many employers and advocates in cities and states across the country are working to generate proposals that are appealing to both sides of the debate.

Washington, D.C.

Effective December 17, 2014, Washington, D.C. joined 13 states that have ban-the-box laws and passed the Fair Criminal Record Screening Amendment Act of 2014, prohibiting District of Columbia employers from unlawfully screening a prospective employee’s criminal background. The legislation expressly prohibits employers from inquiring about, or requiring an applicant to disclose, any arrest or criminal accusation made against the applicant that: (1) is not pending against the applicant; or (2) did not result in a conviction.

An employer is permitted to ask about any criminal convictions after extending a conditional offer of employment. Employers may then withdraw the offer or take adverse action against the applicant only for a legitimate business reason that is reasonable under the seven factors listed in the act:

  1. the specific duties and responsibilities necessarily related to the employment sought or held by the person;
  2. the bearing, if any, that the criminal offense or offenses for which the person was previously convicted will have on his or her fitness or ability to perform one or more of his or her specific duties or responsibilities;
  3. the time that has lapsed since the occurrence of the criminal offense(s);
  4. the age of the person at the time of the criminal offense;
  5. the frequency and severity of the criminal offense;
  6. any information produced by the person or produced on his or her behalf with respect to his or her rehabilitation and good conduct since the occurrence of the criminal offense; and
  7. the public policy that it is beneficial generally for former offenders to obtain employment.

The act applies to all employers with 10 or more employees located in the District of Columbia including employers in the surrounding states (i.e., Virginia and Maryland) that may have 10 or more employees who work within the District. The applicable employment sectors include the District of Columbia government, private companies, and non-profit organizations.

In the event that the prospective employee believes that the employer took adverse action and chose not to hire the applicant on the basis of his or her criminal history, the applicant may request that within 30 days of the adverse action, the employer provide him or her with the following:

  • a copy of all records procured by the employer in consideration of the applicant, including criminal records; and
  • a notice that advises the applicant of his or her opportunity to file an administrative complaint with the District of Columbia Office of Human Rights (OHR).

The OHR is charged with enforcing the act and is the final decision-maker as to whether a violation occurred. Although the legislation expressly precludes a private right of action, monetary penalties may be imposed with half of the amount going to the complainant and the other half to the District. The penalties range from $1,000 for employers with 11 to 30 employees; $2,500 for employers with 31 to 99 employees; and $5,000 for employers with 100 or more employees. For additional guidance, the OHR is releasing a series of videos, fact sheets, and notice templates on its website.

Maryland

While Washington, D.C. is leading the legislation in the mid-atlantic region, various counties in the neighboring state of Maryland, including Prince George’s County, Montgomery County, and Baltimore City, have followed suit, enacting their respective ordinances prohibiting employers from inquiring about a job applicant’s arrests, criminal convictions, or accusations during the initial phases of the hiring process. These counties have imposed additional and varying requirements for multi-jurisdictional employers with respect to: (1) the minimum number of employees required to trigger the legislation; (2) when an employer may inquire about the applicant’s criminal history; and (3) the circumstances under which an employer is required to comply with the legislation.

Similar to Washington, D.C.’s law, Baltimore City’s legislation is applicable to employers with 10 or more full-time employees working in the jurisdiction, while Montgomery County requires a minimum of 15 employees working in the county to trigger its ordinance. Prince George’s County’s legislation applies to employers with 25 or more full-time employees operating and doing business in the county.

With respect to when a prospective employer is permitted to inquire about the applicant’s criminal history, Baltimore City requires an employer to wait until after a conditional offer of employment has been made. Both Montgomery and Prince George’s counties allow such inquiries after the initial interview.

The Montgomery County and Prince George’s County laws both require employers to comply with the legislation if the applicant is applying for a position in their respective county. Baltimore City imposes a similar requirement in which compliance is triggered if the applicant (1) is applying for a position in Baltimore; or (2) lives in Baltimore.

When an employer chooses not to hire a candidate because of his or her criminal background, Prince George’s County and Montgomery County employers must provide the candidate with a copy of the criminal records report, notify the applicant of their intention to rescind the offer, and state the reasons that are the basis for the decision to rescind the offer of employment. Furthermore, the applicant must be given an additional seven days to dispute the record and notify the employer of any potential inaccuracies. Baltimore City does not require that employers provide candidates with an adverse action notice.

In terms of remedies, all three counties rely on administrative enforcement and investigation of any alleged violations. Like Washington, D.C., Baltimore City, Prince George’s County and Montgomery County do not provide a private right of action for prospective employees to file a civil lawsuit to recover damages; however, the counties’ respective administrative agencies may impose substantial fines on employers that violate their ban-the-box laws, depending on the size of the employer.

Practical Tips for Employers

Here are a few practical tips to direct employers on general best practices with hiring inquiries:

  • Train human resources personnel, hiring managers, hiring principals, and other decision-makers on all applicable employment discrimination laws and the appropriate time frames in which to inquire into an applicant’s criminal history based on the applicable laws.
  • Discuss ban-the-box legislation with your background check provider to ensure that it is obtaining only information that employers are permitted to take into account during the hiring process.
  • Review and revise job applications and other documents used in the hiring process, including online questionnaires, to remove inquiries about an applicant’s criminal background.
  • Review the U.S. Equal Employment Opportunity Commission’s general guidance on the use of criminal histories to screen prospective employees.