District of Columbia Becomes Latest Jurisdiction to “Ban the Box”

On July 14, 2014, the DC Council unanimously approved the Fair Criminal Record Screening Act (the Act) that bars private employers from asking about an applicant’s criminal conviction record until the employer has extended a conditional job offer. The stated purpose of the Act is to “assist the successful reintegration of formerly incarcerated people into the community by removing barriers to gainful employment.” Mayor Vincent Gray (D) is expected to sign the legislation into law imminently. If signed by the Mayor, the Act will take effect after a 30-day period of Congressional review and publication in the DC Register.

The Act also flatly prohibits any inquiry into a job applicant’s arrest record. The Act makes it an unlawful discriminatory practice to take an adverse action against an applicant on the basis of any arrest or criminal accusation that did not result in a conviction or to ask about a conviction before a conditional job offer has been extended.

The Act states that, if an employer refuses to hire an applicant after learning about his or her conviction, it must be supported by a “legitimate business reason.” The Act requires a balancing test to determine whether a legitimate business reason is justifiable by weighing the following factors:
 

1. The specific duties and responsibilities related to the employment sought;
2. The bearing, if any, the criminal offense or offenses for which the applicant was convicted will have on his or her ability to perform the job duties;
3. The time that has passed since the conviction;
4. The applicant’s age at the time of the conviction;
5. The frequency and seriousness of the crime;
6. Information produced by the applicant regarding his or her rehabilitation and good conduct since the conviction; and
7. The public policy that underlying the Act — that it is “beneficial generally for ex-offenders to obtain employment.”
    

If an employer decides to withdraw an applicant’s conditional offer, the applicant may request that the employer provide a Statement of Denial within 30 days that articulates the legitimate business reason. The Statement of Denial must specifically identify the employer’s consideration of the factors set forth above and advise the applicant of his or her right to file an administrative complaint with the DC Office of Human Rights.

The Act also sets forth some exemptions, such as when a law or regulation requires the consideration of an applicant’s criminal history for the purpose of employment or when an applicant voluntarily discloses his or her criminal history before a conditional offer is extended. And, like most employment-related legislation, the Act contains an anti-retaliation provision which makes it unlawful for an employer to retaliate against an applicant or employee for exercising his or her rights under the Act. Importantly, however, the Act includes no private right of action — only an administrative remedy when an applicant believes a job denial is based on an employer’s inappropriate use of criminal history.

By passing the legislation, DC has followed a national trend that has been percolating over the last few years. According to the National Employment Law Project, 12 states and more than 66 cities and counties have adopted ban-the-box policies.

For more information about the Act or other ban-the-box legislation, please contact the authors of this alert, or any other members of the Arent Fox Labor & Employment Group.