D.C.’s Fair Criminal Record Screening Act of 2014 took effect on December 17. The new law prevents employers with 11 or more employees in D.C. from making any criminal inquiries on an initial employment application (i.e., “banning the box”). Once the employer has extended the applicant a conditional offer of employment, it may inquire into an applicant’s conviction history but may not rescind the offer based on a conviction without a “legitimate business reason.” The law flatly prohibits inquiries into arrests or criminal accusations that are not pending or did not result in a conviction. For more on the new law, see our prior client alert.
D.C.’s Office of Human Rights (OHR)—the agency empowered to enforce the new law—recently issued guidance addressing many of the law’s key provisions. As part of the guidance, the OHR published a “Notice of the Right to File a Complaint.” The plain text of the law states that employers must furnish this notice within 30 days of receipt of the applicant’s request for any and all criminal records the employer procured in consideration of the applicant’s employment. The OHR, however, appears to have taken the position that the employer must provide the notice to the applicant upon informing him of the adverse action taken on the basis of his criminal history. Given this inconsistency, employers should consider distributing the notice both with an adverse action letter and in response to an applicant’s request for records.
We will keep you posted on any other developments regarding the new law as they unfold.