Jurisdictions Cuffing Asks About Arrests

November 12, 2014       Sandi Pessin Boyd, Douglas B. Mishkin and Jeffrey S. Tenenbaum      

The District of Columbia is about to become the 14th jurisdiction nationwide to “ban the box,” prohibiting employers — nonprofit and otherwise — from asking job applicants to check a box indicating whether they have ever been arrested. Nonprofits with employees in Washington, D.C., that ask an employment applicant questions about criminal history early in the hiring process, or who use criminal history to eliminate an applicant from the employment pool, will be subject to a fine by the D.C. Commission on Human Rights.

The D.C. Council passed the “Fair Criminal Record Screening Act” this past July. Mayor Vincent Gray returned the signed legislation to the D.C. Council in August. The new law becomes effective following a 30-day Con­gressional review period, as required by the District of Columbia Home Rule Act, and publication in the District of Columbia Register.

The 30-day review period counts only days in which Congress is actually in session, so the new law likely will not take effect until later this year or early 2015. Nonprofit managers should use this opportunity to begin evaluating their hiring practices and preparing to make the necessary changes.

 

What Is “Banned?”

A covered employer may never inquire about, or require an applicant to disclose or reveal, an arrest or a criminal accusation that did not result in a conviction or that is not currently pending. An employer may not obtain such information through application forms, interviews, or criminal history checks.

A nonprofit may obtain information about an applicant’s criminal convictions after a conditional offer of employment. But the employer may only withdraw that conditional offer, or take some other adverse action against an applicant, for a “legitimate business reason” that takes into account:

  • The specific duties and responsibilities of the position;
  • The bearing of the criminal offense on the applicant’s fitness or ability to perform the job;
  • The time that has elapsed since the offense;
  • The age of the applicant at the time of the offense;
  • The frequency and seriousness of the offenses; and,
  • Any information provided by the applicant to show that the person has been rehabilitated.

If an applicant believes that a conditional offer was rescinded or an adverse action was taken because of a criminal conviction, the nonprofit must provide within 30 days of the applicant’s request (1) a copy of all records procured by the employer in consideration of the applicant, and (2) a notice advising the applicant of the person’s opportunity to file an administrative complaint with the D.C. Office of Human Rights.

 

Which Employers and Jobs Are Covered?

This new law applies to nonprofits that employ more than 10 people in the District of Columbia. This includes temporary or seasonal work, contracted work, contingent work, or work through a temporary or employment agency where the physical location of the employment is in whole or substantial part within the District of Columbia. It also includes any form of vocational or educational training with or without pay.

This law does not define “employee” and is silent as to whether it applies to unpaid interns and other volunteers. In contrast, the D.C. Human Rights Act defines “employee” as including “unpaid intern.” Thus, at present, there is no authoritative guidance on whether unpaid interns and volunteers are covered by the new law.

Affected nonprofits should consult legal counsel before deciding whether to exempt unpaid interns and volunteers from the prohibition of the new law.

The law expressly excludes:

  • Any facility or employer that provides programs, services, or direct care to minors or vulnerable adults;
  • Positions required by federal or D.C. law or regulation to consider an applicant’s criminal history;
  • Positions designated by the employer as part of a federal or D.C. program designed to encourage employment of those with criminal histories; and,
  • District of Columbia courts.

Managers at covered nonprofits should review their employment applications and hiring policies and:

  • Remove any questions from initial application forms regarding an applicant’s arrests, criminal accusations, or convictions;
  • State in the organization’s employee manual and/or other relevant policy documents that, in compliance with this law, the organization does not inquire about arrests or convictions pre-offer, and only considers convictions post-offer for “legitimate business reasons;”
  • Train your in-house and outsourced human resource professionals and others with interviewing responsibilities to avoid questions about arrests and convictions;
  • Educate managers and supervisors about the limited ability to consider convictions after making an offer of employment; and,
  • Prepare a form to provide Notice of Right to File an Administrative Complaint with the D.C. Office of Human Rights.

Separate and apart from this new development, the federal Equal Employment Opportunity Commission (EEOC) has issued guidelines regarding what it considers the proper use of criminal history in the hiring process.

 

Potential Penalties

An aggrieved applicant may only file an administrative complaint with the D.C. Commission on Human Rights. There is no right to sue a nonprofit employer in court. The Commission’s remedies are limited. If the Commission finds a violation, the Commission may impose monetary penalties — half of which are awarded to the complainant — ranging from $1,000 to $5,000, depending on the nonprofit’s number of employees. E

Sandi Pessin Boyd is an associate with Venable LLP. Her email is sboyd@venable.com. Douglas B. Mishkin is a partner with Venable. His email is dbmishkin@venable.com. Jeffrey S. Tenenbaum is also a partner with the firm. His email is jstenenbaum@venable.com