DC Bans the Box

by Ifrah PLLC
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Criminal defendants face a wide range of consequences for their alleged actions.  The high emotional and financial cost of defending a case may pale in comparison to the personal toll resulting from a conviction and the associated direct consequences including fines, penalties, remuneration, and incarceration. For most offenders, however, the longest-lasting consequence of all is the criminal record which they carry with them for life.  Some collateral consequences of a criminal conviction are imposed by law—for instance, convicted felons lose the right to vote and are ineligible for welfare benefits and federal student loans. (A database of collateral consequences by state can be found here.) Others are imposed by society.  Nowhere is this stigma more apparent or restrictive than in the ex-offender’s job search when, in trying to become productive members of society, they are routinely screened out of the workforce due to criminal history questions on initial job applications.

On July 14, the D.C. Council unanimously approved the Fair Criminal Record Screening Act of 2014, a bill which requires private employers to consider job applicants based on their merits and qualifications prior to considering their criminal convictions. The Act applies to all private employers in DC employing 10 or more persons, with the exception of employers providing programs, services, or direct care to minors or vulnerable adults. The Act prohibits employers from asking, in connection with a person’s employment, any questions relating to arrests or criminal accusations not currently pending which did not end in conviction.  Additionally, private DC employers may not ask job seekers any questions about criminal convictions during the initial application process. Rather, employers may only ask an applicant about his or her criminal convictions after the employer makes a conditional job offer.  Once the applicant discloses any convictions, the employer may only rescind the offer for a legitimate business reason, taking into consideration the seriousness of the offense and the bearing it may have on employment, among other factors. The D.C. Mayor must sign the bill prior to it becoming law.

This is the latest development in the “Ban the Box” movement which has gained traction in many states and municipalities–so called because of the “check here if you have ever been convicted of a crime” box commonly found on job applications. We wrote about Baltimore’s initiative in a previous post.  The ban the box movement is an effort to restrict initial job application questions about criminal history and thereby increase the odds that former offenders become productive members of society by re-entering the workforce.  A July 2014 National Employment Law Project report (not yet updated with the passage of DC’s bill) found that 12 states and 66 municipalities have instituted some legal measure restricting the timing of inquiries into criminal history during the job application process.  The laws vary as to specifics. In some jurisdictions, employers can make an inquiry into the applicant’s criminal history after an initial round of screening or interviews but prior to making a conditional offer. In some jurisdictions the law applies only to public sector employers, while in others it also applies to private sector employers of a certain size.  Some employers, such as retail giants Target and Wal-Mart, have independently instituted similar policies company-wide.

The Ban the Box movement has garnered criticism in some quarters for being a superficial fix which will ultimately deter employers from hiring at all.  Employers, the reasoning goes, will incur unnecessary expense in interviewing candidates and making conditional offers which they later rescind upon doing a criminal records check.  Then the employer could face litigation over whether the offer was rescinded based on a “legitimate business reason.” The candidate also allegedly loses out by counting on a job offer that doesn’t result in a job.

While there will be, no doubt, instances in which former offenders are disappointed by rescinded job offers, this concern is outweighed by the opportunity to receive fair consideration of their qualifications in the first place.  And a positive result on a criminal records check does not automatically mean that an employer has wasted time and resources in the hiring process; an individualized inquiry into the circumstances of the offense may not change the hiring decision at all, especially for offenses that are older or relatively minor. To the extent that banning the box marginally increases the length or cost of a hiring process, more and more governing bodies are determining that this is an acceptable cost in furtherance of the greater good.  And in D.C., complaints about criminal records-based hiring decisions are referred to the Office of Human Rights for administrative remedies rather than being resolved through litigation.

The Council’s approval of the Act is a great step forward for the estimated 60,000 D.C. residents with criminal records, as well as for non-residents employed in the District.  The Ban the Box movement gives former offenders a much-needed opportunity to show that they are more than their records, and to be considered for employment on their merits, in context.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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