DC Bans the Box

Getting a job is hard enough, but what happens if you have a criminal record?  You fill out a job application, and one of the questions is, “Do you have a criminal record?” What are the chances that the employer is even going to read the rest of the application to find out your qualifications, much less call you in for an interview or seriously consider you for the job? 

In the District of Columbia, about 60,000 residents have criminal records.  Studies show that someone with a criminal record is 50% less likely to get a call back for a job interview.

On August 22, 2014, the DC Mayor signed the  “Fair Criminal Record Screening Amendment Act of 2014.”  This law will go into effect on Sept. 22, 2014, unless the US Congress rejects it (this is a by-product of “Home Rule,” but it is not expected that Congress will veto the law). It is called a “Ban the Box” law because it prohibits employers from requiring job applicants to put a check mark in a box on a job application indicating that he or she has a criminal record.  Note that this law refers to criminal convictions, not arrests.  Under existing law employers already are prohibited from asking about an applicants’ arrest history. 

The new law prohibits employers from asking applicants to answer questions about their criminal records until after the employer makes a conditional job offer.  An employer is defined as “any person, company, corporation, firm, labor organization, or association, . . . that employs more than 10 employees in the District of Columbia.”  It does not include the federal government or the judicial branch, nor does it apply if “any federal or District law or regulation requires the consideration of an applicant’s criminal history for the purposes of employment.” 

In other words, the job offer is contingent on the results of the employer’s inquiry into the applicant’s criminal record, and the employer may only withdraw the offer for a “legitimate business reason.”  What is considered a legitimate business reason can be based on whether the criminal offense has a bearing on the applicant’s fitness for the specific position, how long ago the crime occurred, the applicant’s age at the time of the crime, and the seriousness of the crime, among other factors.

Employers may still attach additional conditions to the conditional offer, such as proof of eligibility to work or passing a pre-employment physical, so long as those conditions are expressly communicated to the applicant at the time of the conditional offer.

An applicant who believes that an employer unfairly considered his or her criminal conviction may demand that the employer provide a copy of all records that the employer obtained in the course of considering the applicant for the job, and may file a complaint with the DC Office of Human Rights.

The applicant has no right to file a court case on his or her own, but the DC Office of Human Rights may ask the Commission on Human Rights to issue a finding that the employer violated the law.  In that case, the Commission may fine the employer with a penalty of between $1,000 and $5,000, depending on the size of the employer, and will pay half of the amount received to the complaining applicant. 

For job applicants, the new law means that they will have the chance to make their best case as to why they are the right person for the job without fear that the employer will simply discard the application upon learning that the candidate has been convicted.  For employers, the new law means that they may not reflexively reject a candidate with a criminal record, but may still decide to withdraw a job offer if they have a legitimate business reason for concluding that the criminal record makes it impossible to give the candidate the job. 

Similar “Ban the Box” legislation is also in effect in the cities of Philadelphia, Seattle, Newark, San Francisco, Baltimore, and Rochester, NY.  Some states, including Hawaii, Massachusetts, Minnesota, and Rhode Island have similar state-wide bans. Similar laws in Illinois and New Jersey will go into effect in early 2015.

Employers with operations in Washington, D.C. should revise their employment applications, educate their interviewing managers, and prepare to promptly comply with this new law.  

       – This blog entry was prepared by Elizabeth L. Newman.  You may reach her at enewman@kcnlaw.com.