District of Columbia Adopts Ban-the-Box Legislation - A News Article from Creative Services, Inc. - Mansfield, MA

08.29.14

District of Columbia Adopts Ban-the-Box Legislation

On August 22, 2014, the District of Columbia Council enacted the “Fair Criminal Record Screening Amendment Act of 2014,” a ban-the-box legislation that applies to private employers in the District with more than ten employees.  The law will take effect following a 30-day period of Congressional review. Currently, ban-the-box laws affect more than 50 cities and 10 states.

What Employers Need to Know

• The Act restricts employers from making any inquiry regarding an arrest or criminal accusation made against the applicant, which is not then pending against the applicant and which did not result in a conviction.
• Covered employers are also prohibited from making an inquiry regarding any criminal conviction until a conditional offer of employment is made.
• Any prohibited inquiry into these matters, direct or indirect, including application forms, interviews, and criminal history checks, is considered to be an unlawful discriminatory practice.
• The Act requires employers to first make a conditional offer of employment before asking about or requiring disclosure of a criminal conviction.
• An arrest may never serve as the basis for the withdrawal of an offer. After a conditional offer of employment is made, an employer may only withdraw the offer because of a criminal conviction for a “legitimate business reason” in light of specific factors:

--Whether the offense will have any impact on the applicant’s ability to perform the duties related to the employment sought;
--The time that has elapsed since the occurrence of the criminal offense;
--The frequency and seriousness of the criminal offense; and
--Any information produced by the applicant, or on behalf of the applicant, that relates to rehabilitation and good conduct since the occurrence of the criminal offense.

Unlike other recent ban-the-box legislation, the D.C. law does not provide an applicant with the ability to privately take action against an employer he/she feels has violated the terms of this legislation. Instead, if an offer of employment is withdrawn, the applicant has 30 days to request a Statement of Denial detailing the reasoning behind the withdrawal. If there is evidence of discrimination, the applicant could file an administrative complaint with the Office of Human Rights.

Recommendations
• Review your organization’s policies and procedures, including your application for questions relating to criminal history, guidelines and documentation for your hiring process, and your pre-adverse action process to ensure your compliance with the changing laws.

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