Key Takeaways
- Inquiries must be made after a conditional offer.
- Employers must conduct a job-related analysis before rejecting an applicant with a criminal record.
- Applicants can request additional information after being rejected because of their criminal record.
Who does this effect?
“Employer” means “any person, company, corporation, firm, labor organization, or association . . . that employs more than 10 employees in the District of Columbia.”
What does the law provide?
- Criminal history information can be sought after a conditional offer of employment (need not be in writing).
- Employers may not inquire about “any arrest or criminal accusation made against an applicant, which is not then pending against the applicant or which did not result in a conviction.”
- The employer “may only withdraw the conditional offer” or otherwise “take an adverse action against an applicant for a legitimate business reason.”
- The employer’s determination of a “legitimate business reason” must be reasonable in light of the following factors: The specific duties and responsibilities necessarily related to the employment sought or held by the person; The bearing, if any, the offense or offenses for which the person was previously convicted will have on the fitness or ability to perform one or more such duties or responsibilities; The time that has elapsed since the occurrence of the offense or offenses; The age of the person at the time of the occurrence of the criminal offense; The frequency and seriousness of the criminal offense; and Any information produced by the person, or produced on his or her behalf, in regard to rehabilitation and good conduct since the occurrence of the criminal offense.
Are there any notice requirements?
If an applicant believes that a covered employer withdrew a conditional offer or otherwise took adverse action against the applicant “on the basis of a criminal conviction,” the applicant may request, within 30 days of the termination or adverse action, that the employer provide him or her with the following within 30 days after the employer’s receipt of the request: A copy of any and all records procured by the employer in consideration of the applicant or employee, including criminal records; and A notice that advises the applicant of the opportunity to file an administrative complaint with the DC Office of Human Rights.
Are there any exceptions?
The prohibitions in the law do not apply where, among other things, “any federal or District law or regulation requires the consideration of an applicant’s criminal history for the purposes of employment,” or to “any positions designed by the employer as part of a federal or District government program or obligation that is designed to encourage the employment of those with criminal histories.” Employers should consult with their to see if they are otherwise exempt from the law.