DC “Ban the Box” Law Prohibits Employers From Asking About Applicant Criminal Backgrounds

DC recently passed a law prohibiting employers from asking about applicant’s criminal background, let’s go over how this law will affect your business.

In an effort to promote rehabilitation and opportunity for ex-offenders, Washington, DC forbids employers from asking a job applicant about any arrests, convictions, or accusations (other than pending criminal charges) on an application for employment. This law only applies to businesses with more than ten employees within DC. Instead of asking about such topics during the application phase, these employers should instead make conditional offers of employment dependent on a later examination of the applicant’s criminal record. Once the offer is extended, an employer can then ask about criminal convictions. However, it is never legal for an employer to ask about arrests or criminal accusations that are not pending or did not result in a conviction, even after making an offer of employment.

If—after making the applicant a job offer—an employer finds out that the applicant was in fact convicted of a crime, the employer may decide to withdraw the job offer only if there is a “legitimate business reason” for the withdrawal. The decision to withdraw an offer must be reasonable in light of (1) the duties and responsibilities of the employee, (2) the degree to which the criminal offense will bear on the employee’s ability to perform those duties and responsibilities, (3) the length of time since the criminal offense, (4) the age of the applicant when the criminal offense occurred, (5) the frequency and seriousness of the criminal offense and (6) any evidence that the job applicant has been rehabilitated and the applicant’s good conduct since the offense occurred. For example, it would likely be reasonable to withdraw an offer for a sales clerk position from someone recently convicted of embezzlement. However, it may be unreasonable to withdraw this offer due to a juvenile conviction for marijuana possession.

There are several exceptions to this law. It does not apply to employers that work with minors and vulnerable adults, to programs designed to encourage the employment of convicted criminals, or where federal or District law requires consideration of criminal history.

Job applicants who believe that an employer has violated this law may file a complaint with the DC Office of Human Rights. Depending on the size of the employer, the Office of Human Rights can impose a penalty of between $1,000 and $5,000 per violation. For more information about this law, the DC Office of Human Rights has created explanatory videos, factsheets and sample templates, which are available at http://ohr.dc.gov/page/returning-citizens-and-employment.

William Wolfe