September 15, 2014

DC's New "Ban-the-Box" Law: Nonprofits May No Longer Question Applicants about Arrests

5 min

Update: D.C.'s Ban-the-Box law went into effect December 17, 2014.

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. Beginning soon, nonprofits with employees in Washington, DC that ask an employment applicant questions about his/her 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 DC Commission on Human Rights.

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 offense; and
  • Any information provided by the applicant to show that s/he 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If an applicant believes that a conditional offer was rescinded or an adverse action was taken because of a criminal conviction, the nonprofit must provide, within 30 days of the applicant's request (1) a copy of all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 his or her opportunity to file an administrative complaint with the DC Office of Human Rights.

Which Employers and Jobs Are Covered?

This new law applies to nonprofits that employ more than 10 employees in DC. 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 DC 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 DC law or regulation to consider an applicant's criminal history;
  • Positions designated by the employer as part of a federal or DC program designed to encourage employment of those with criminal histories; and
  • DC courts.

What Should Your Nonprofit Do?

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 DC Office of Human Rights.

Note that, 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.

What Penalties Apply?

An aggrieved applicant may only file an administrative complaint with the DC 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.

When Does the New Law Take Effect?

The DC Council passed the "Fair Criminal Record Screening Act" on July 14, 2014, and DC Mayor Vincent Gray returned the signed legislation to the DC Council on August 22, 2014. 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 (i.e., not weekends, holidays, or other days during which Congress does not convene), so the new law likely will not take effect until late 2014/early 2015. Thus, nonprofits should use this opportunity to begin evaluating their hiring practices and preparing to make the necessary changes now.