Mayor Vincent Grey recently signed into law the Fair Criminal Record Screening Act for Washington, D.C., which soon will be effective for all covered D.C. employers with more than 10 employees. With this law, the District adds itself to a growing list of states and municipalities that have taken steps to limit employers’ ability to request (and in some cases use) information about an applicant’s criminal record in the hiring process through what are commonly called “ban the box” laws. The Act is currently under congressional review and is projected to go into effect on or near October 21, 2014.
McGuireWoods’ September 5, 2014 WorkCite article regarding other “ban the box” initiatives may be accessed here.
Covered Employers and Employees
The Act generally covers employers that employ at least 10 employees where the physical location of such employees’ work is in whole or substantial part within the District. The definition of “employee” is broad and includes full-time, part-time, seasonal and other employees. However, a fair reading of the Act is that the criminal screening limits outlined in it only apply to job openings for work to be performed substantially inside the District. Thus, even if an employer is subject to the Act by meeting the 10 employee threshold, screening for job openings with work to be performed outside the District (e.g., in New York) is not subject to the Act’s restrictions.
Limitations on Inquiries into Criminal History Information
Under the Act, covered employers are not prohibited altogether from obtaining criminal background checks or requiring applicants to disclose information about criminal history. Employers are, however, limited as to when and what type of information they can request.
Most significantly, the Act prohibits employers from inquiring about or requiring applicants to disclose a conviction until after extending the applicant a conditional offer of employment. For purposes of the Act:
- A “conditional offer” is an offer that is conditioned solely on the results of a criminal background check or some other employment-related contingency expressly communicated to the applicant at the time of the offer.
- A “conviction” includes a sentence arising from a guilty verdict, guilty plea or plea of nolo contendere, including incarceration, a suspended sentence, probation or an unconditional discharge.
Employers also are prohibited from inquiring about an applicant’s arrest or a criminal charge that (a) did not result in a conviction, and (b) is not currently pending. Thus, the Act does not directly prohibit covered employers in the District from inquiring about any current criminal charges faced by an applicant. While the Act is silent on when employers can make such an inquiry, the overall intent of the Act suggests that an employer should wait to inquire about pending charges until after a conditional offer is made.
The Act also includes several exceptions to the criminal background inquiry limits, such that the Act does not apply where: (1) federal or local law or regulation requires consideration of an applicant’s criminal history for purposes of employment; (2) the position is designated by the employer as part of a government program to encourage the employment of ex-offenders; or (3) the employer provides programs, services or direct care to minors or vulnerable adults.
Evaluation of Legitimate Business Reasons
Under the Act, employers may withdraw a conditional offer or take an adverse employment action based on criminal background information only if the withdrawal or action is for a legitimate business reason. The Act further requires that the legitimate business reason must be deemed reasonable in light of the following factors:
- The specific duties and responsibilities for the position sought
- The bearing of the criminal offense on the applicants’ fitness or ability to perform the duties and responsibilities of the position sought
- The time since the offense
- The age of the applicant at the time of the offense
- The frequency and seriousness of the offense
- Any information produced by or on behalf of the applicant to show his or her rehabilitation and good conduct since the offense
Potential Remedies Under the Act
If an applicant believes his or her conditional offer was revoked in violation of the Act, the applicant may request pertinent documents from the employer relating to the decision. The employer must provide a copy of all records pertaining to its consideration of the applicant within 30 days of such a request, including copies of the applicant’s criminal record and a notice of the applicant’s right to bring a complaint with the D.C. Office of Human Rights.
The Act specifically does not provide a private right of action for any alleged violation. Instead, it states that an aggrieved applicant’s exclusive remedy is to file an administrative complaint with the D.C. Office of Human Rights. If the Commission on Human Rights (an agency within the D.C. Office of Human Rights) ultimately finds a violation of the Act, the employer is potentially subject to a fine between $1,000 and $5,000, depending on the size of the employer.
Comparison with Federal Guidelines
Parts of the D.C. Fair Criminal Record Screening Act are, in many ways, very similar to the Enforcement Guidance issued by the federal Equal Employment Opportunity Commission in 2012, particularly in the application of individualized factors as to whether to exclude an applicant with a criminal record. Employers in the District that have already revised their practices to align with that guidance should be well-positioned to adhere to the new D.C. law as well. A significant difference, however, is that the Act requires covered D.C. employers to extend a conditional offer before seeking information about an applicant’s conviction history and prohibits employers from inquiring about certain alleged conduct that has not resulted in conviction. Thus, it is important that employers with operations in the District review their hiring processes to ensure compliance with the new requirements.