District of Columbia Passes Ban the Box Law – Requires Changes to Adverse Action Notices

Executive Summary

Coverage:  Any person, company, corporation, firm, labor organization, or association, including the District government, but not including the Courts, that employs more than 10 employees in the District of Columbia.

Effective Date:    The law will take effect following a 30-day period of Congressional review.

Overview:   Creates the “Fair Criminal Records Screening Act” which amends the Re-entry Facilitation Amendment Act of 2012. The new law prohibits the consideration of a job applicant’s arrest records during the hiring process, restricts an employer’s inquiry into a job applicant’s prior convictions until after a conditional job offer, and establishes penalties for non-compliance of the law.

Action Required: Review Internal Hiring Policies and Employment Applications, modify adverse action letters and consult with your Human Resource Business Partner as needed.

The Details

On August 22, 2014 District of Columbia Mayor Vincent Gray signed Bill 20-642, the “Fair Criminal Records Screening Act.” The new law expands beyond traditional “ban the box” laws by prohibiting employers from inquiring about arrest and conviction records on an employment application or interview until after a conditional job offer has been made. The law also places restrictions on employer’s ability to withdraw a conditional offer and take adverse action against an applicant by requiring the employer to determine a legitimate business reason for such decisions along with providing specific reasons for the adverse decision.

Ban-the-Box Requirements

The phrase “ban the box” refers to removing from employment applications questions concerning an applicant’s criminal history (e.g., criminal convictions and pending charges). The new D.C. law prohibits employers from inquiring about or requiring an applicant to disclose or reveal any arrest records or pending criminal accusations made against the applicant which have not resulted in a conviction. Employers are also prohibited from making inquiries or requiring an applicant to disclose any criminal convictions in an application form, interview or criminal history check. Employers are only allowed to make conviction inquiries after making a conditional offer of employment.

Determination of Reason for Adverse Action

Employers may only withdraw the conditional offer to an applicant or take an adverse action against an applicant for legitimate business reasons. An employer’s determination of a legitimate business reason must be “reasonable in light of the following factors”:

(1) The specific duties and responsibilities necessarily related to the employment sought or held by the person;

(2) The bearing, if any, of the criminal offense or offenses for which the person 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 or offenses;

(4) The age of the person at the time of the occurrence of the criminal offense;

(5) The frequency and seriousness of the criminal offense;

(6) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct since the occurrence of the criminal offense; and

(7) The public policy that it is beneficial generally for ex-offenders to obtain employment.

Special Adverse Action Requirements

If an employer terminates an applicant’s conditional offer or takes adverse action against an applicant on the basis of a criminal conviction, the applicant may request that the employer provide them, within 30 days:

(1) A copy or any and all records procured by the employer in consideration of the applicant or employee, including criminal records; and

(2) A written Statement of Denial, which:

(A) Articulates a legitimate business reason;

(B) Specifically demonstrates consideration of each of the factors set forth in above;

(C) Advises the applicant of his or her opportunity to file an administrative complaint with the Office of Human Rights.

NOTE -The adverse action notices provided by ADP Screening and Selection Services do not specifically include all of the elements listed above that provide the basis for the adverse decision. Clients should contact their Human Resources Business Partner for assistance as needed to customize these notices if applicants reside in the District of Columbia or the physical location of the job is in whole or in part in the District of Columbia.

Exceptions

The law provides certain exceptions to employer’s inquiries into criminal history information to include where any federal, district law or regulation requires the consideration of an applicant’s criminal history for the purpose of employment. Also exceptions are provided to any positions designated by the employer as part of a federal or district government program that is designed to encourage the employment of those with criminal histories.

Penalties

A person claiming to be aggrieved by a violation of this part may file an administrative complaint with the Office of Human Rights. If the Commission finds an employer in violation, the Commission may impose penalties a) For employers that employ 11 to 30 employees, a fine of up to $1,000; (b) For employers that employ 31 to 99 employees, a fine of up to $2,500; (c) For employers that employ 100 or more employees, a fine of up to a $5,000.

A full reading of the new law can be found here: B20-0642

Practical Impact

This ordinance will require employers to review their hiring processes and related documentation and modify notices. More generally, the District of Columbia law is part of a growing trend at the state and local level aimed at controlling the use of criminal history to make employment decisions.  In addition, the federal Equal Employment Opportunity Commission (“EEOC”) has recommended that employers refrain from including criminal history inquires on employment applications. EEOC guidance can be located here.

As always, please contact your Human Resources Business Partner if you have any questions.