Following in the footsteps of Baltimore and a number of other states and localities, the District of Columbia City Council recently approved a “ban the box” bill that prohibits employers from asking about a job applicant’s criminal history until after making a conditional job offer. In a D.C.-specific wrinkle, the bill, known as the Fair Criminal Record Screening Act of 2014 (“the Act”), must first be approved both by Mayor Vincent Gray and by Congress before going into effect. Mayor Gray has previously expressed support for the Act.
The Act is designed to give more opportunities to those individuals with criminal records, including the approximately 8,000 who people resume their lives in D.C. each year after serving a prison or jail sentence. Many in the D.C. business community, however, fear that the Act does little more than delay employers’ hiring processes, imposing unintended costs and consequences as employers strive to maintain safety and public confidence in their workplaces.
The Act covers all employers with more than 10 employees in Washington, D.C. and is limited to job applicants, rather than including existing employees. Even those employers who would otherwise be covered based on their size are exempt if: (1) a background check is required of their industry by federal, state or local law: (2) the applicant volunteers the information without being asked: and/or (3) the employer “provides programs, services, or direct care to minors or vulnerable adults,” such as caregiving and child care services.
Covered employers must not ask about or otherwise request that an applicant divulge his or her criminal background during the application or initial interview stage. Employers may still decline to consider an applicant further based on his or her qualifications, interview performance, and even Internet searches of the applicant, provided that the decision is not based on criminal background information.
If a covered employer decides to make a conditional job offer to the applicant, it may then perform a background check. The employer remains free to withdraw an offer for a “legitimate business reason” after performing the criminal background check. The employer may only consider criminal convictions and pending criminal proceedings in deciding whether to withdraw the job offer, however; considering arrests or any “criminal accusation” short of a conviction is prohibited. In making this determination, the employer should consider, among other things, the duties and responsibilities of the job sought by the applicant, the impact of the crime(s) committed by the applicant, if any, on the fitness or ability of the applicant to perform that job, the time that has lapsed since the criminal offense(s), and the offender’s age at the time such offense was committed.
Employers who violate the Act stand to face fines of up to $5,000 for each infraction, depending on their size. Specifically, employers with 11-30 employees face up to a $1,000 fine; those with 31-99 employees face up to $2,500; and those with more than 100 employees, up to $5,000. (Unlike Baltimore’s bill, however, incarceration is off the table as an option for D.C. employers.) The Act also provides a 30-day period for an applicant or employee who feels that his or her rights have been violated to request a copy of “all records” the employer considered, including criminal records. Any applicant who believes that he or she was denied employment because of his or her criminal record also has the ability to file an administrative complaint with the D.C. Office of Human Rights. (A requirement that employers provide a written statement of denial explaining their decision was eliminated from the Act prior to passage of the final version.) Furthermore, employers may not retaliate against any applicant or employee based on the filing of such a complaint.
As discussed, the Act has not yet taken effect. In the meantime, employers are encouraged to evaluate whether they are covered and, if so, alter their employment applications and interview questions and training appropriately. Although the provisions of D.C.’s “ban the box” bill are very similar to those in Baltimore, there are different enforcement mechanisms in place. Employers with at least 10 employees in each locality should be particularly mindful of the varying requirements.