• When Can an Employer Consider an Applicant’s Criminal History?
  • December 1, 2014
  • Law Firm: Lerch Early Brewer Chartered - Bethesda Office
  • Your company’s job application process may have long included an initial inquiry into whether the applicant had been convicted of a crime. However, recent "Ban the Box" legislation being enacted in states and municipalities nationwide is changing the way employers can inquire into an applicant’s criminal background. Specifically, these laws require an employer to wait until it is ready to offer a job to an applicant before inquiring into the applicant’s criminal background.

    The purpose of these laws is to lower criminal recidivism. The idea being that applicants who were formerly convicted of a crime are needlessly being eliminated from consideration for employment based on a conviction from many years ago or completely unrelated to the position for which the individual is applying. Promoters of the legislation hope that by "banning the box," (that is the box next to the job application’s question asking the applicant to check the box if he or she has previously been convicted of a crime), will lead to employers hiring more convicted criminals. The hope is that by the time the employer learns of the conviction in the latter stages of the hiring process, it will have already developed a relationship with the candidate and therefore be less likely to withhold the job based on the candidate's prior criminal conviction. Of course the overarching idea is that convicted criminals are less likely to return to crime if they are gainfully employed.

    When Is Withdrawing an Offer Based on a Background Check Reasonable?

    The first municipality to enact "Ban the Box" legislation in the Washington, DC metropolitan area is the District of Columbia. The city's "Fair Criminal Record Screening Act of 2014" provides that an employer of ten or more employees may not inquire or require a job applicant to disclose a criminal conviction until after the employer makes a conditional offer of employment, i.e., an offer that is conditioned upon the employee successfully completing the criminal background check. The law states that the employer may withdraw the conditional offer based on the criminal conviction shown in the background check if it is for a "legitimate business reason" reasonable in light of the following factors:

    1. The specific duties and responsibilities necessarily related to the employment sought or held by the applicant;

    2. The bearing, if any, the criminal offense for which the applicant was previously convicted will have on his or her fitness or ability to perform one or more such duties or responsibilities;

    3. The time that has elapsed since the occurrence of the criminal offense;

    4. The age of the applicant at the time of the occurrence of the criminal offense;

    5. The frequency and seriousness of the criminal 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.

    The law gives an employee who believes that his or her criminal history caused an employer to take an illegal adverse action the ability to file an administrative complaint with the DC Office of Human Rights (OHR). DC OHR can impose penalties of between $1,000 and $5,000 for violation of the law, depending on the number of employees employed by the employer, with half of the penalty going to the applicant who filed the complaint.

    DC’s "Ban the Box" law does not apply in those situations in which a law requires the consideration of an applicant’s criminal history for the purposes of employment, such as an employer that provides services to minors or vulnerable adults. However, it does apply to independent contractors, temporary employees, and even unpaid interns. The DC law is scheduled to go into effect on October 21, 2014.

    Montgomery County, Maryland recently enacted similar "Ban the Box" legislation (Bill 36-14, "Fair Criminal Record Screening Standards") during the Council's meeting on October 28, 2014. Prince George's County, Maryland also is considering passing similar "Ban the Box" legislation. The bill will be the focus of a public hearing in Prince George's County on November 19, 2014.

    Thus, employers in the District and Montgomery County should act now to revise their employment applications to eliminate any questions pertaining to criminal convictions. In addition, employers should update their offer letters to specify that the job offer is conditioned upon successful completion of a criminal background check. Employers also should update job descriptions to specific which positions require consideration of an applicant's criminal history at the pre-offer stage and how a criminal history would negatively impact the ability to perform the job’s functions.