District of Columbia Bans the Box - August 26th, 2014

On August 22, the District of Columbia Mayor, Vincent Gray signed the Fair Criminal Record Screening Amendment Act of 2014.  The act prohibits an employer, which is defined as any person, company, corporation, firm, labor organization or association, including the District government, but not including courts, that employ more than 10 employees in the District of Columbia, from making any inquiry into an applicant’s criminal history until after making a conditional offer of employment.  It also limits the inquiry to convictions and pending cases.

The law takes a broad view of employment and includes any occupation, vocation, job, or work for pay, including temporary or seasonal work, contracted work, contingent work and work through the services of a temporary or other employment agency or any form of vocational or educational training with or without pay, where the physical location of the employment is in whole or substantial part with the district of Columbia.

This act does not apply when:

  1. federal or District law or regulation requires the consideration of an applicant’s criminal history for the purposes of employment;
  2. a position designated by the employer is part of a federal or District government program or obligation that is designed to encourage the employment of those with criminal histories; or
  3. any facility or employer that provides programs, services, or direct care to minors or vulnerable adults.

After the conditional offer of employment has been made, an employer may only withdraw the conditional offer of employment, or take an adverse action against an applicant for a legitimate business reason.  Similar to the EEOC guidance in determining a legitimate business reason the employer must consider the following:

  1. The specific duties and responsibilities necessarily related to the employment sought or held by the applicant;
  2. The bearing, if any, of the criminal offense for which the applicant was previously convicted will have on his or her fitness or ability to perform one or more such duties or responsibilities;
  3. The time which has elapsed since the occurrence of the criminal offense;
  4. The age of the applicant at the time of the occurrence of the criminal offense;
  5. The frequency and seriousness of the criminal offense; and
  6. Any information produced by the applicant, or produced on his or her behalf, in regard to his or her rehabilitation and good conduct since the occurrence of the criminal offense.

If an applicant believes that a conditional offer of employment was terminated or an adverse action was taken based on a criminal conviction, the employee may request within 30 days that the employer provide the applicant within 30 days:

  1. A copy of any and all records procured by the employer in consideration of the applicant, including criminal records; and
  2. A notice that advises the applicant of his or her opportunity to file an administrative complaint with the Office of Human Rights.

Individuals can file a complaint with the Office of Human Rights who can impose the following penalties of which half shall be awarded to the complainant:

  1. For employers that employ 11 to 30 employees, a fine of up to $1,000;
  2. For employers that employ 31 to 99 employees, a fine of up to $2,500; or
  3. For employers that employ 100 or more employees, a fine of up to $5,000.

This act shall take effect following a 30-day period of congressional review and publication in the District of Columbia Register.  The full text of the act can be found here. http://lims.dccouncil.us/_layouts/15/uploader/download.aspx?legislationid=30954&filename=B20-0642-Enrollment.pdf