Washington DC Bans the Box

The District of Columbia enacted the "Fair Criminal Record Screening Amendment Act of 2014." The Act is the District's version of the ban-the-box legislation which is sweeping the country. The Act applies to private employers with more than ten employees. The Act went into effect on August 22nd.

The new ordinance restricts employers from asking about or requiring an applicant to disclose or reveal information about arrests or any criminal accusation made against the applicant which is not pending and/or did not result in a conviction. Employers must first make a conditional offer of employment before asking about or requiring disclosure of a criminal conviction, and then must show a legitimate business reason for withdrawing the conditional job offer.

Once an employer extends an offer of employment to the applicant, the employer may withdraw the offer or take adverse action against the applicant only for a legitimate business reason. In determining a legitimate business reason, the employer's decision "must be reasonable" in light of:

  • The specific duties and responsibilities of the job
  • The bearing, if any, that the criminal offense for which the applicant was convicted will have on the applicant's fitness or ability to perform one or more responsibilities of the job
  • The time that has elapsed since the occurrence of the criminal offense
  • The frequency and seriousness of the criminal offense
  • 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
Any time an applicant believes that a conditional offer was withdrawn or that an adverse action was taken on the basis of a criminal conviction, they may make certain demands on the employer. Within in 30 days of the termination or adverse action, the applicant may request that the employer provide a copy of all records that the employer obtained and/or considered in making its decision, including criminal records. The employer is required to send a notice that advises the applicant of his or her opportunity to file an administrative compliant with the Office of Human Rights.

The Act provides the Office of Human Rights with the exclusive remedy for violations under the ordinance. A person claiming to be aggrieved by a violation may file an administrative compliant with the Office of Human Rights. Penalties may be assessed as follows:
  • 11 to 30 employees, a fine up to $1,000
  • 31 to 99 employees, a fine up to $2,500
  • 100 or more employees, a fine up to $5,000