On August 21, 2014, District of Columbia Mayor Vincent C. Gray signed citywide ban-the-box legislation, formally titled the “Fair Criminal Record Screening Amendment Act of 2014” (“Act”) ( D.C. Act 20-422). The Act bars most private and government employers from inquiring about criminal convictions until after a conditional offer of employment has been made, thus going well beyond the provisions in most recent ban-the box legislation that simply defer criminal conviction inquiries until after the written application or after a first interview. As explained in greater detail below, the Act also restricts how conviction information can be used by would-be employers. Only Hawaii and a soon-to-be-preempted Newark, New Jersey, ordinance have similar restrictions. The Act is expected to become effective following a Congressional review period projected to expire on or about October 21, 2014 (depending on how long Congress remains in session this fall).
Prohibited and Permissible Inquires and Actions
The Act prohibits employers from making any “inquiry” about, or requiring an applicant to disclose or reveal, an applicant’s criminal conviction until after making a conditional offer of employment. Additionally, the Act prohibits, at any time, any inquiry or required disclosure concerning either an arrest or a criminal accusation that (i) is not then pending or (ii) did not result in a conviction. The Act defines “inquiry” as any direct or indirect conduct using any method, including application forms, interviews, and criminal history checks.
Employers may only inquire about an applicant’s criminal conviction record (not including the applicant’s arrest or criminal accusation that is not then pending or did not result in a conviction) after making a “conditional offer of employment,” which is statutorily defined as an offer conditioned solely on the results of a criminal record inquiry or some other employment-related contingency expressly communicated to the applicant at the time of the offer.
The Act also provides that an employer may only withdraw the conditional offer to an applicant, or take an adverse action against an applicant, for what the employer determines is a “legitimate business reason.” However, the Act provides that such a determination must be reasonable in light of the following factors:
- the specific duties and responsibilities necessarily related to the employment;
- the bearing, if any, of the criminal offense on fitness or ability to perform one or more such duties or responsibilities;
- the time elapsed since the occurrence of the criminal offense;
- the age of the applicant at the time of the occurrence of the criminal offense;
- the frequency and seriousness of the criminal offense; and
- any information produced by or on behalf of the applicant regarding rehabilitation and good conduct since the occurrence of the criminal offense.
An applicant who believes that a conditional offer was “terminated” (i.e., withdrawn) or an adverse action was taken based on a criminal conviction has 30 days to request, and the employer then has 30 days to provide, (i) a copy of all records procured by the employer in consideration of the applicant, including criminal records, and (ii) a notice advising the applicant of his or her opportunity to file an administrative complaint with the D.C. Office of Human Rights (“Notice”). At present, it is unclear if or when the Office of Human Rights will create an appropriate Notice, so employers should be prepared to provide their own in the meantime.
The Act applies to any person or entity, including the D.C. government (but not the courts), that employs more than 10 employees in the District of Columbia, where the physical location of the employment is in whole or substantial part within the District of Columbia. This includes work through the services of a temporary or other employment agency, or any form of vocational or educational training with or without pay.
The Act does not apply:
- where a federal or District law or regulation requires the consideration of an applicant’s criminal history for the purposes of employment;
- to positions designated by the employer as part of a federal or District government program or obligation designed to encourage the employment of those with criminal histories; or
- to any facility or employer that provides programs, services, or direct care to minors or vulnerable adults.
An individual may file an administrative complaint with the D.C. Office of Human Rights in accordance with the procedures for filing charges under the D.C. Human Rights Act. However, the administrative remedies are exclusive and a private judicial cause of action is expressly excluded.
If, following a hearing on an administrative complaint, the Commission on Human Rights finds a violation of the Act, it must impose a penalty of up to $1,000 if the employer has 11-30 employees; up to $2,500 if it has 31 to 99 employees; and up to $5,000 if it has 100 or more employees. Half of the penalty goes to the complainant.
What Employers Should Do Now
Although the precise date on which the Act will take effect is uncertain, as soon as possible, District of Columbia employers should:
- review the jobs for which they hire to determine whether any of those jobs would fall within an exemption to the applicability of the Act;
- revise District of Columbia job applications to remove questions seeking criminal background information for all positions that are covered by the Act or, if a multistate application is used, clarify that applicants for a position in the District of Columbia should not respond to questions seeking criminal background information (unless an applicable exception applies);
- train recruiters and others who conduct interviews not to ask about criminal history or conduct criminal background checks until after a conditional offer is extended;
- revise offer letters, if necessary, to confirm that the offer is contingent upon the successful completion of a criminal background check;
- train recruiters and others who may be involved in deciding whether a criminal record should result in withdrawing a conditional offer or other adverse action that their decision must be based on an evaluation of specific statutorily defined factors for legitimate business reasons;
- create/obtain the Notice required by the Act in order to provide it, if requested; and
- confirm that employment agencies and background check providers are aware of the Act and have revised their forms (including the Notice) and procedures accordingly.
In addition, District of Columbia employers may wish to take note of other recent D.C. legislation, including:
- a bill enacted earlier this year that broadened the applicability of the D.C. Accrued Sick and Safe Leave Act (for more details, see the Epstein Becker Green Act Now Advisory “Amendments to the District of Columbia’s Accrued Sick and Safe Leave Act of 2008”), and
- the “Wage Theft Prevention Amendment Act of 2014” (recently passed by the City Council and awaiting Mayor Gray’s signature), which broadens the remedies available under the Wage Payment and Collections Act, the Minimum Wage Act, and the Accrued Sick and Safe Leave Act.