Another jurisdiction has passed Ban the Box legislation for private sector employers – Washington, DC.
The “Fair Criminal Record Screening Amendment Act of 2014” signed into law on August 22nd, 2014 restricts employers from inquiring into an applicant’s criminal history until after a conditional offer has been made.
Below is a high-level recap of what you need to know in order to stay compliant. For more detailed information on Washington DC’s Fair Criminal Record Screening Amendment Act of 2014, please see Accurate Background’s “Ban the Box” Compliance Update for the District of Columbia.
When does the law go into effect?
The law 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.
What are the major implications of the legislation?
- Employers may only ask about the applicant’s criminal history post-offer. Initiating requests for criminal history information during the application or interview process is strictly prohibited.
- Adverse Action:
- In order for an employer to take adverse action based on the criminal record, they must do so only for a “legitimate business reason.” The employer must base this determination using the 6 factors below (Source: Littler).
–The specific duties and responsibilities necessarily related to the employment sought or held by the person;
–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;
–The time that has elapsed since the occurrence of the criminal offense or offenses;
–The age of the person at the time of the occurrence of the criminal offense;
–The frequency and seriousness of the criminal offense; and
–Any information produced by the person, or produced on his or her behalf, in regard to rehabilitation and good conduct since the occurrence of the criminal offense
- The applicant may request, within 30 days, that the employer provide them with the documentation listed below. The employer must provide this documentation within 30 days after receiving the request (Source: Littler):
–A copy of any and all records procured by the employer in consideration of the applicant or employee, including criminal records; and
-A notice that advises the applicant of his or her opportunity to file an administrative complaint with the DC Office of Human Rights.
- Unlike other recent Ban the Box legislation, the new law does not provide an applicant with the ability to privately take action against an employer they feel has violated the terms of this legislation, but they are able to file a complaint with the office of Human Rights. The employer could face penalties between $1,000 and $5,000. (Source: Littler)
Recommendations*
Now is the time to review, and discuss with your legal counsel, 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.
For more information regarding recent Ban the Box initiatives in other states and jurisdictions, visit our Legislative Updates page.
*Please note: This blog is provided for educational purposes only and is not intended to be legal advice, either expressed or implied. Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.
