District of Columbia's Criminal History Law Among Nation's Broadest

Author: David B. Weisenfeld, XpertHR Legal Editor

September 9, 2014

District of Columbia Mayor Vincent Gray has signed a law that appears to be one of the nation's broadest in restricting employer criminal history inquiries during the hiring process.

The Fair Criminal Record Screening Amendment Act of 2014 applies to employers with more than 10 employees in the nation's capital. The Act continues the "ban the box" trend of laws barring employers from asking applicants to check off a box on job applications if they have ever been convicted of a crime. However, the District of Columbia ordinance goes much further.

For instance, the Act will prohibit covered employers from asking criminal history questions or seeking criminal background records until after a conditional job offer has been made. The new law also bans inquiries - at any point in the selection process - into arrests or criminal accusations against an applicant that are not pending or did not result in a conviction.

Even after extending an employment offer, a covered employer will be prohibited from withdrawing that offer or taking other action based on a criminal record except for a "legitimate business reason." Under the Act, an employer's determination of a legitimate business reason must be reasonable in light of the following factors:

  • The specific duties and responsibilities related to the job being sought;
  • Any bearing the criminal offense for which the applicant was convicted will have on his or her ability to perform such duties or responsibilities;
  • The time elapsed since the criminal offense occurred (along with its seriousness);
  • The applicant's age at the time the offense occurred; and
  • Any information produced by the applicant regarding rehabilitation or good conduct since the criminal offense occurred.

If a prospective employee believes a conditional offer was withdrawn based on a criminal conviction, within 30 days after the withdrawal he or she may request that the employer provide a copy of:

  • All records the employer obtained in considering the applicant, including criminal records; and
  • A notice advising the applicant of his or her opportunity to file an administrative complaint with the District of Columbia's Office of Human Rights.

The following penalties may be imposed in the event of a violation:

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

The Act will take effect following a 30-day period of congressional review as provided in the District of Columbia Home Rule Act and publication in the District of Columbia Register.

Cities that have passed "ban the box" laws affecting private employers include Baltimore, Buffalo, Philadelphia, San Francisco and Seattle. Meanwhile, 13 states have passed "ban the box" measures with six that already apply or will soon apply to private businesses. These include:

  • Hawaii;
  • Illinois;
  • Massachusetts;
  • Minnesota:
  • New Jersey; and
  • Rhode Island.