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District of Columbia Adopts Beyond-The-Box Legislation

By Michael Klazema on 8/22/2014

The District’s new ordinance restricts employers from asking about or requiring an applicant to disclose or reveal information about arrests or any criminal accusation (indictment, information, complaint or formal charge) made against the applicant which is not pending or did not result in a conviction. The Act goes beyond the box by requiring employers to first make a conditional offer of employment before asking about or requiring disclosure of a criminal conviction, and then by compelling them to show a legitimate business reason for withdrawing the conditional job offer.

Under the new ordinance, once an employer extends an offer of employment to the applicant, the employer can withdraw the offer or take adverse action against the applicant only for a legitimate business reason. In determining a legitimate business reason, the employer’s decision “must be reasonable” in light of the following factors:

  1. The specific duties and responsibilities of the job necessarily relate to the employment sought or held by the applicant;
  2. The bearing, if any, that the criminal offense for which the applicant was convicted will have on the applicant’s fitness or ability to perform one or more responsibilities of the job;  
  3. The time that has elapsed since the occurrence of the criminal offense;
  4. The frequency and seriousness of the criminal offense; and
  5. Any information produced by the applicant, or on behalf of the applicant, that relates to rehabilitation and good conduct since the occurrence of the criminal offense.

Any time an applicant believes that a conditional offer was withdrawn or that an adverse action was taken on the basis of a criminal conviction, he or she may make certain demands on the employer. The applicant may request within 30 days after the termination or adverse action, that the employer provide within 30 days a copy of all records that the employer obtained and/or considered in making its decision, including criminal records. In these cases, the employer is required to also send a notice that advises the applicant of his or her opportunity to file an administrative complaint with the Office of Human Rights.

The Act provides the Office of Human Rights with the exclusive remedy for violations under the ordinance. A person claiming to be aggrieved by a violation of the Act may file an administrative complaint with the Office of Human Rights. If the Commission finds that a violation has occurred, penalties may be assessed as follows for employers that employ:

  1. 11 to 30 employees, a fine of up to $1,000;
  2. 31 to 99 employees, a fine of up to $2,500;
  3. 100 or more employees, a fine of up to $5,000.

As we have been reporting on the past couple of years, ban-the-box legislation is rarely just about eliminating or banning the box that asks about criminal history from the job application form. It usually places more restrictions and obligations on employers, and grants specific rights and remedies to applicants and employees. We will continue to report on the different variations of “beyond-the-box” legislation as it is adopted.

You may access the District’s Bill 20-642 here: http://lims.dccouncil.us/_layouts/15/uploader/
Download.aspx?legislationid=30954&filename=B20-0642-Enrollment.pdf
 

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