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D.C. Ban the Box Law Creates New Challenges for Employers

Published by on July 14, 2016

Ban the Box laws are rapidly being enacted in cities and states across the country in a broader movement to limit the impact of a criminal conviction.

In December 2014, Washington D.C.’s Fair Criminal Record Screening Act took effect. The legislation is a so-called “Ban the Box” law, which prohibits employers from inquiring about a job applicant’s criminal convictions before a conditional offer of employment has been extended.

The push for Ban the Box laws — named for the box on an initial application form an applicant must check regarding whether or not they have a criminal record — has swept the nation. Such laws are rapidly being enacted in cities and states across the country in a broader movement to limit the impact of a criminal conviction, as more attention shifts to the societal harms of mass incarceration.

Criminal justice reform has gained significant bipartisan momentum and is a leading issue nationally, as well as at the state and local level. In addition to front-end reforms (such as sentencing reform and reassessment of drug policies), a major aspect of criminal justice reform is addressing “collateral consequences” — the back-end, long-term effects of a criminal conviction that create barriers to full reintegration into society, and often lead to a convict’s recidivism.

Nearly 70 million Americans have a criminal record and maintaining steady employment is often a necessary element for effective rehabilitation. A challenge encountered by many convicts seeking employment is not even having a chance to show an employer their qualifications and explain their background; employers see on the initial application that the applicant has checked the box indicating they have a criminal record, and they often move on to the next application.

Ban the Box laws, in their original form, prohibit employers from asking about criminal history on the initial application and delay inquiring about it until the later stages of the hiring process, such as after a first interview. By delaying the disclosure of this information, many convicts are able to show that they are otherwise the right person for the job, and employers may be more willing to hire them despite a criminal record, when they learn of it.

D.C.’s law, however, is not written in the style of the basic Ban the Box laws. Under the Fair Criminal Record Screening Act, D.C. Code Ann. § 32-1341 et seq., a D.C. employer may not inquire about an applicant’s criminal history until after extending to an applicant a conditional offer of employment. Upon learning of the applicant’s criminal history, the employer’s decision to rescind the offer must be reasonable in light of six factors, which are:

  1. The specific duties and responsibilities necessarily related to the employment sought or held by the applicant;
  2. The bearing, if any, of the criminal offense for which the applicant was previously convicted will have on his or her fitness or ability to perform one or more such duties or responsibilities;
  3. The time which has elapsed since the occurrence of the criminal offense;
  4. The age of the applicant at the time of the occurrence of the criminal offense;
  5. The frequency and seriousness of the criminal offense; and
  6. Any information produced by the applicant, or produced on his or her behalf, in regard to his or her rehabilitation and good conduct since the occurrence of the criminal offense.

§ 32-1342(d).  The Act applies to all companies in the District of Columbia with ten or more employees, and, depending on the size of the firm, an employer may be subject to a $5,000 fine for each violation. The Act limits an employer’s inquiries to charges resulting in a conviction, plea of guilt, or plea of nolo contendere; an employer may not inquire about arrests or accusations that did not result in a conviction or is no longer pending.

While the intentions of Ban the Box laws are certainly noble, D.C.’s iteration of the law creates unnecessary risks for employers. First, the six-factor analysis is a highly unusual requirement to place on employers and is an analytical exercise more familiar to judges than business owners. Few cases are clear-cut and multi-factored analyses often result in hazy conclusions. This analysis could cause an overly cautious small company that doubts its conclusion and fears a sanction to hire an applicant that unnecessarily exposes the company to a risk of harm or to a third-party’s claim of negligent hiring if the employee commits an offense.

Second, by only allowing D.C. employers to rescind the offer “when reasonable in light of the [six] factors,” employers may not rely on older, less severe, irrelevant convictions during the hiring decision. Like most jurisdictions, employment in D.C. is at-will, which allows an employer to deny an applicant for any reason or no reason at all. Limited exceptions to at-will employment have been enacted to curb discrimination and may not be a factor in denying an applicant.

By prohibiting employers from setting a blanket policy of not hiring applicants with criminal records, D.C. has ostensibly extended protected class status to criminal histories of older, lesser crimes. While many companies admirably choose to hire applicants with criminal convictions, actively seeking to play a rehabilitative role in that person’s life, sanctioning employers who do not seek to play this role with their business is a misguided policy that takes away a legitimate piece of information to be considered by D.C. employers.

Welter Insight:

Employers in Washington, D.C. must be aware of the Fair Criminal Record Screening Act and its implications. With limited exceptions, most businesses with ten or more employees must comply with the law. Initial application forms must not make inquiries into the applicant’s criminal background.

Only after extending a conditional offer of employment may an inquiry regarding criminal convictions be made; at no time may inquiries be made regarding arrests or accusations that did not results in a conviction.  If an applicant reveals a prior conviction, the offer may only be rescinded if doing so would be reasonable after careful consideration of each of the six factors as they relate to the particular individual and the job for which they have applied.

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