Getting Ready to "Ban the Box": What Employers Need to Know

Washington, D.C. is on track to join 12 states in instituting a "ban the box" law, which will restrict employers from screening job applicants based on applicants’ criminal history.  The Fair Criminal Record Screening Amendment Act of 2014, passed by the D.C. Council in July and signed by Mayor Vincent Gray on August 22, is currently under a 30-day Congressional review.

Under the law, a D.C. employer may not question an applicant about criminal convictions or pending criminal cases until the employer has made a conditional job offer.  Currently, many employers include a check box on job application forms that asks: "Have you ever been convicted of a crime?" Proponents of "ban the box" legislation argue that such check boxes present an insurmountable obstacle to employment for many ex-offenders, while opponents assert that the legislation puts a significant burden on employers.

The new law would apply to any employer in D.C. that employs more than 10 people, and defines "employment" broadly as including temporary or seasonal work for pay, as well as vocational or educational training with or without pay.  The law would not apply to positions for which a federal or D.C. law requires consideration of a job applicant’s criminal history or to positions designated by the employer as part of a federal or D.C. government program designed to encourage the employment of those with criminal histories.  Employers that provide programs, services, or direct care to children or vulnerable adults are also exempted.

An employer can withdraw a job offer only for a "legitimate business reason" upon learning of an applicant’s criminal conviction or pending criminal matter.  The employer’s determination of a legitimate business reason must be reasonable, based on six factors:

• The specific duties and responsibilities required by the position sought or held by the applicant;
• The bearing, if any, that an applicant’s criminal offense will have on his or her fitness or ability to perform the job’s duties;
• The time elapsed since the criminal offense was committed;
• The age of the applicant at the time the criminal offense was committed;
• The frequency and seriousness of the criminal offense; and
• Any information produced by the applicant, or on the applicant’s behalf, in regard to his or her rehabilitation and good conduct since the criminal offense was committed.

The applicant may request, within 30 days, that the employer provide within 30 days:

• Copies of all records obtained by the employer during the application within 30 days; and
• A notice that advises the applicant if his or her right to file a complaint with the Office of Human Rights.

Job applicants seeking redress under the law may file a complaint with the Office of Human Rights as their exclusive remedy.  If the Office of Human Rights determines that a violation has occurred, employers can be fined up to $500, based on the number of employees they employ.

Employers operating in the District of Columbia should determine whether they are covered by the law. If so, they should revise job applications, interviewing guidelines and policies and procedures for background checks, as well as notice letters and any corresponding enclosures.  They should also review and make adjustments in policies governing the sequencing and timing of events in the hiring process, and create new guidelines and documentation to comply with the law.