Presentations

Applicants' Criminal Histories May Soon Be Off Limits in Initial Interviews in Montgomery County and District of Columbia

By: Jeffrey Seaman

The District of Columbia has enacted a law that will prohibit employers with 10 or more full-time employees from inquiring about a job applicant’s criminal history during the initial application process.  There is similar legislation pending in Montgomery County, Maryland, and a public hearing on the proposed law is scheduled for September 9.

The laws’ sponsors explain that criminal history inquiries on the initial employment application often preclude many people from even getting to the interview stage during the employment process, and that this dynamic prevents people with a criminal conviction from  fully reintegrating as productive members of society.  The sponsors of the Montgomery County bill note that approximately one in three adults have some record of arrest or conviction.  The District’s Committee on the Judiciary and Public Safety writes in support of the law that 10% of the District’s population has a criminal history and that the number is increasing. The sponsors of the laws reason that by eliminating the automatic employment disqualification that a criminal history often carries with it, the jurisdictions will reap a net economic benefit in the form of reduced recidivism rates, lower law enforcement and corrections expenses, higher employment, and greater tax and sales revenues.

The proposed laws reflect guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC), which has explained that employers’ refusal to consider any applicant with a criminal history has disproportionately affected minorities, and creates the effect of racial and ethnic discrimination.

Both the District’s and Montgomery County’s pending laws are similar to laws passed by several states and a handful of cities in recent years.  These laws are commonly called “ban the box” laws, a reference to the portion of many job applications requiring an applicant to indicate whether she or he has a criminal history.

Montgomery County

Under the proposed law (the “Fair Criminal Record Screening Standards”), employers may inquire about arrest or conviction records only after a conditional offer of employment is made to the applicant (and employers must inform the applicant that the offer is conditioned upon a subsequent investigation into the applicant’s criminal history). 

After making the conditional offer and conducting the criminal background investigation, the employer’s assessment of the applicant’s criminal history must be “individualized.”  More specifically, the law indicates that the employer should consider:

1. “only specific offenses that may demonstrate unfitness to perform the duties of the position;”
2. the time elapsed since the specific offense(s); and 
3. any evidence of inaccuracy in the record.

If, after making its assessment of the applicant’s criminal history, the employer intends to take an “adverse employment action” (failure to hire, to discharge or not promote a person, “or to limit, segregate, or classify employees in any way which would deprive a person of employment opportunities or otherwise adversely affect the person’s employment status”), the employer must notify the applicant of its intent to do so, must provide the applicant with the criminal record report and must identify the items that are the basis of its decision to take the adverse action.  The applicant would then have a week within which to provide the employer notice of any inaccuracy in the report.  If the applicant provides that notice to the employer, the employer must delay the adverse action “for a reasonable period,” and must reconsider the adverse action in light of the information provided by the applicant. If the employer takes an adverse action even after considering the applicant’s inaccuracy claim, the employer must notify the applicant of that decision, in writing, within seven days of taking the action.

The law includes an anti-retaliation provision that prohibits an employer from retaliating against any person from “lawfully opposing” a violation of the article, or from participating or assisting in an investigation or hearing concerning a violation. 

Violation of the law could result in awards of compensation, attorneys’ fees, damages for “humiliation and embarrassment,” and fines of up to $1,000.

The proposed amendment would not apply to employers that provide programs, services or direct care to minors or vulnerable adults.

A public hearing on the proposed Code amendment is scheduled for September 9. 

District of Columbia

The District’s law, entitled the “Fair Criminal Record Screening Act of 2014,” was passed by the Council on July 14 and signed by the Mayor on August 22, 2014.  The Mayor’s signature will be followed by a 30-day Congressional review, after which the act will become effective. 

The new law will prohibit employers with 10 or more employees in the District of Columbia from asking applicants about arrests or any criminal accusations that are not pending or that did not result in a conviction.  The employer may ask about convictions, but only after making a conditional offer of employment.  If after making a conditional offer the employer learns that the applicant has a criminal conviction history, the employer may only withdraw the offer (or take other “adverse action”) for a “legitimate business reason.”   The employer’s withdrawal or other adverse action must be reasonable, and must be based on the following:

1. The specific duties and responsibilities necessarily related to the employment sought or held by the applicant;
2. The bearing, if any, the offense will have on the applicant’s fitness or ability to perform one or more such duties or responsibilities;
3. The time that has elapsed since the occurrence of the offense;
4. The age of the applicant at the time of the offense;
5. The frequency and seriousness of the offense; and
6. Any information produced by the applicant, or produced on his or her behalf, in regard to his or her rehabilitation and good conduct since the occurrence of the criminal offense.

An applicant who believes that an offer has been withdrawn or that “other adverse action” was taken because of a criminal conviction may request, within 30 days of the withdrawal or adverse action, the following:

1. Copies of all records procured by the employer “in consideration of the applicant,” including criminal records; and
2. A notice that advises the applicant of his or her opportunity to file an administrative complaint with the Office of Human Rights. 

The Office of Human Rights may impose penalties of between $1,000 and $5,000 for violations of the law, depending upon the size of the employer. 

As with any law, there are nuances that require careful examination of particular factual circumstances that will vary from case to case, applicant to applicant, and employer to employer.  But the table below should be as useful guide to the basic application of the new laws.

Ban the Box Summaries
DC and Montgomery County

	District of Columbia	Montgomery County
To whom does the "Ban the Box" Law Apply?	Employers with 10 or more employees whose work location is in whole or in part in the District.	Employers with 10 or more full-time employees in Montgomery County
What types of Employers are excepted from the application of the new law?	Where law requires consideration of an applicant’s criminal history for purposes of employment (e.g., financial institutions are required by certain laws to inquire about criminal histories), OR where a position is designated by the employer as part of a government program or obligation designed to encourage employment of those with criminal histories, OR to facilities that provide programs, services or direct care to minors or vulnerable adults.	Where law expressly permits inquiry into an applicant’s criminal history, OR employers that provide programs, services or direct care to minors or vulnerable adults.
At what point in the process is an employer permitted to inquire about an applicant's criminal history?	Only after a “conditional offer” is made.	Only after a “conditional offer” is made.
Are there any aspects of a criminal history about which an employer may not ask?	An employer may ask about and conduct investigation ONLY of convictions or pending criminal charges. Employers may not inquire about arrests.	An employer may ask about and conduct investigations of the applicant’s conviction and arrest record.
If the investigation reveals that an applicant has a criminal history, what are the employer's obligations?	Before taking adverse action, the employer should consider the following factors: (1) The specific duties and responsibilities of the position; (2) The bearing, if any, the previous offense will have on the applicant’s ability to perform the duties or responsibilities of the position; (3) The amount of time that has elapsed since the commission of the offense; (4) The age of the applicant at the time of the offense; (5) The frequency and seriousness of the offense; and (6) Any information produced by the applicant or on her behalf regarding her rehabilitation and good conduct since the commission of the offense.	Before taking adverse action, the employer must engage in an “individualized assessment,” considering the following factors: (1) Only specific offenses that may demonstrate unfitness to perform the duties of the position; (2) The time elapsed since the specific offense; and (3) Any evidence of inaccuracy in the record. If after making the individualized assessment the employer decides to take adverse action, the employer must provide the applicant or employee with: (1) A copy of the criminal record report, and (2) Notification of the contemplated adverse action and the items upon which the prospective adverse action is based.
What are the applicant's obligations following an adverse action?	If  the employer takes adverse action, the applicant may within 30 days request the following: (1) a copy of all records procured by the employer regarding the applicant, including criminal records, and (2) a notice that advises the applicant of his or her opportunity to file an administrative complaint with DC’s Office of Human Rights.	If the employer takes adverse action, the applicant has 7 days after being notified of prospective adverse action to provide employer with notice of evidence of the inaccuracy of any items upon which the prospective action is based.
What further obligations does the employer have?	If the employee makes a timely request for the records and notice set forth above, the employer must provide the records and notice within 30 days of the request.	If applicant provides notice of evidence of inaccuracy, employer must (1) Delay the adverse action “for a reasonable period,” and (2) Must reconsider the prospective action in light of the new information.  IF employer takes final adverse action after delay and reconsideration, employer must notify applicant in writing of the final adverse action in writing.
What are the penalties for violations of the law?	Between $1,000 and $5,000, depending upon size of employer.	Up to $1,000 in fines, plus compensatory damages, lost wages, attorneys’ fees.
Who decides whether there has been a violation?	The D.C. Office of Human Rights.	County Commission on Human Rights; the applicant may also pursue litigation in civil court.

The preceding is provided for informational purposes, and is not intended as legal advice. The publication of this article does not create an attorney/client relationship.  Application of the laws will be dependent upon the situation under which a claim may arise.