Ban-the-box legislation originally prohibited employers from
including the question “have you been convicted of a crime” and its associated
check box. This was in an effort to rehabilitate former offenders. The thought
process is that without an opportunity to gain employment, many are doomed to
become repeat offenders. While recent laws in the same vein are being referred
to as ban-the-box laws, this is a bit of a misnomer. The movement towards more
regulations on
background
screening has evolved to include more stipulations than just removing a
check box from an application.
The latest to join the recent push for more regulations on
background screening is Washington D.C. The bill signed by Mayor Vincent Gray
last month will go into effect after a 30-day period of congressional review. It
is scheduled to go into effect October 21, 2014. This law, dubbed the
Fair
Criminal Record Screening Amendment Act of 2014, applies to all D.C.
employers with 10 or more employees.
The law states:
- Employers may not make any inquiry about an
arrest or criminal accusation against the applicant, which is not pending and
did not result in a conviction.
- An employer must not make any inquiry about an
applicant’s criminal history until after making a conditional offer of
employment.
- A conditional offer can only be rescinded if
there is a “legitimate business reason”
Exceptions where inquiry into an applicant’s criminal may precede
a conditional offer:
- Where any federal or District law or regulation
requires the consideration of an applicant’s criminal history for the purposes
of employment
- Where a position designated by the employer is
part of a federal or District government program or obligation that is designed
to encourage the employment of those with criminal histories
Penalties for violation:
- For employers that employ 11-30 employees, a
fine of up to $1,000
- For employers that employ 31-99 employees, a
fine of up to $2,500
- For employers that employ 100 or more employees,
a fine of up to $5,000
It is crucial that D.C. employers update their hiring
practices no later than October 21
st. Ensure that the application has been reviewed
and modified accordingly. Also, make sure that a criminal
background check is not performed before a conditional offer has been made. Lastly,
the exclusion of an applicant based on criminal conduct must be job related and
consistent with business necessity. If you are not sure what that means, refer
to this
EEOC
guidance.
There are now 13 states and around 70 cities and counties in
the U.S. that have enacted some form of “Ban-the Box” legislation. We will
continue to report new developments so that you may remain informed and in
compliance with the local laws that apply to you and your organization. Another good resource for staying up-to-date is
www.nelp.org.
