Important Notice to All District of Columbia Employers: Public Hearings Begin on Proposed Bill Restricting Use of Criminal Background Checks

The Fair Criminal Records Screening Act has been endorsed by all but one member of the District of Columbia City Council and Public Hearings begin this week. Commonly referred to as “Ban the Box” legislation, the Act prohibits employers from performing criminal background checks, of any kind, prior to making an offer of employment. Although the Act draws from the EEOC guidelines regarding the use of criminal background checks, the Act differs from the Guidelines in many significant ways.   Unlike the EEOC Guidelines on the use of criminal background checks, the proposed legislation imposes mandatory obligations on employers, creates a new protected employee status (individuals with criminal records) and creates a new administrative cause of action (with fee shifting provision) for individuals with criminal records who suffer adverse action, including the withdrawal of a conditional offer.

If passed, District of Columbia employers will be subject to the following restriction, obligations and potential liability:

  • D.C Employers will be prohibited from considering any arrest record for any reason, and will be precluded from taking any adverse action, including suspension, against any applicant or employee who is arrested or has an arrest record.  Under the proposed law, if an employee is arrested for assault and battery of a coworker, the employer cannot take any adverse action against the employee based on the arrest.
  • D.C. Employers may not make any pre-offer inquiry at all into the applicant’s criminal background.  Under the Act as drafted, merely conducting an internet search of an applicant prior to deciding whether to make an offer could result in possible liability under the Act.
  • Once a conditional offer is extended, an employer may inquire about conviction (but not arrests) but the offer may only be withdrawn after consideration of all of the eight specific factors listed in the statute.
  • Under the Act, the employer is required to gather all information about the criminal record/background, and unlike the EEOC guidelines, the Act imposes no obligation on the employee to provide information or assist in the process.
  • The employer is also required to write the rejected employee a letter detailing why the conditional job offer was rescinded, and addressing each of the eight statutory factors. That letter must also advise the employee of their right to file an administrative charge against the employer with the District of Columbia Office of Human Rights.
  • Employers that violate the Act will be subject to fines.  In addition, although no “private cause of action” is created, the Act allows a Claimant to file administrative charges and, if a claimant establishes a violation of the Act a claimant can recover back pay, unlimited compensatory damages, as well attorney’s fees.

Public Hearings are scheduled to commence on Monday, February 10, 2104. For more information please contact Thomas L. McCally at tlm@carrmaloney.com.  The full text of the proposed bill can be found at http://dcclims1.dccouncil.us/images/00001/20140128124900.pdf.