On August 21, 2014, the Council of the District of Columbia joined several states and numerous local jurisdictions in enacting “ban the box” legislation, restricting employers’ ability to inquire into a job applicant’s criminal history. The District’s legislation — titled “The Fair Criminal Record Screening Amendment Act of 2014” (the Act) — is scheduled to become effective on October 21, 2014.
The Act prevents employers from inquiring about (1) arrests, and (2) criminal accusations (i.e., formal charges) that are not then currently pending or did not result in a conviction. The ban on these inquiries prevents direct inquiry through forms and interviews as well as indirect inquiry through criminal history checks.
Employers may continue to inquire about and/or require an applicant to disclose criminal convictions. However, such inquiry can only be madeafter the employer has extended the applicant a conditional offer of employment.
Further, a conditional offer of employment may only be withdrawn due to a conviction for a “legitimate business reason.” An employer’s determination that it has a “legitimate business reason” to withdraw a conditional offer of employment must be reasonable in light of (1) the specific duties and responsibilities of the job; (2) the bearing, if any, the crime of which the applicant was previously convicted has on the applicant’s fitness or ability to perform the duties or responsibilities of the job; (3) the time that has elapsed since the conviction; (4) the age at the time of the criminal offense; (5) the frequency and seriousness of the criminal offense; and (6) any information the applicant provides regarding rehabilitation and good conduct since the criminal offense. Effectively, this makes unlawful a policy of per se denial of employment due to a criminal conviction.
The prohibitions of this Act do 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 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
- to any facility or employer that provides programs, services, or direct care to minors or vulnerable adults.
Office of Human Rights provides exclusive remedy
There is no private right of action for violations of the Act. The exclusive remedy for those claiming to be aggrieved by a violation is to file a complaint with the D.C. Office of Human Rights (the Office). If a violation is found following an investigation by that Office and a hearing before the Commission on Human Rights (the Commission), the Commission may impose penalties (half of which are awarded to the complainant) in varying amounts based on the size of the employer: US$1,000 (11 to 30 employees); US$2,500 (31 to 99 employees); US$5,000 (100 or more employees). No penalties are authorized for employers with less than 11 employees.
The Act contains some ambiguities, including whether other administrative remedies may apply.
The Act also permits an applicant to request documentation from a prospective employer if the employer withdraws a conditional offer of employment and the applicant believes it was due to a conviction. Within 30 days of such a withdrawal, an applicant may request (1) a copy of any and all records procured by the employer in consideration of the applicant (including any criminal records), and (2) a notice that advises the applicant of his or her opportunity to file an administrative complaint with the Office.
The EEOC’s position on criminal histories
Employers should also be aware of the Equal Employment Opportunity Commission’s (EEOC) position on the use of criminal history in employment decisions. Specifically, the EEOC has taken the position that excluding applicants from employment based on criminal conduct may violate Title VII of the Civil Rights Act of 1964 in certain circumstances under either disparate treatment analysis (intentional discrimination) or disparate impact analysis (where a neutral practice has a disproportionate impact on a racial group). The EEOC has provided detailed guidance on this issue here.
What should employers do?
Washington, D.C. employers should take care to ensure — by no later than October 21, 2014 — that their current hiring policies and procedures do not run afoul of the District’s new “ban the box” law. For example, employers should remove inquiries about arrests, criminal accusations, and convictions from all job applications for positions that do not fall into one of the three exempt categories. Additionally, if criminal conviction information will be obtained after a conditional offer of employment, employers should consider updating standard offer letters as appropriate, developing standards and procedures for determining when a conditional offer of employment may be withdrawn for a “legitimate business purpose,” developing procedures to respond to any requests for information following a withdrawal of a conditional offer of employment, and training individuals involved in the hiring process on how to comply with the new law. Employers who conduct background checks must also comply with the Fair Credit Reporting Act that requires, among other things, written disclosure to applicants concerning the background check, written permission from the applicant, and certain notices before and after adverse action is taken. 15 U.S.C. § 1681 et seq.