2015 Brings Limits on Employers' Ability to Inquire About Applicants' Criminal Histories in Montgomery County and the District of Columbia

Date: March 16, 2015

Montgomery County and the District of Columbia have enacted versions of what are commonly referred to as "Ban the Box" laws - laws that limit an employer's ability to inquire about a job applicant's criminal history.

The purpose of this note is to provide you with a comparison of the Montgomery County law (“Fair Criminal Record Screening Standards Law”) to the District of Columbia's corresponding criminal history law (“Fair Criminal Record Screening Amendment Act of 2014”). 

The new version of the Montgomery County law increases to 15 the number of employees an employer must have before the law applies (the original bill contained a 10-employee threshold).  It also limits the penalty for violation to a fine of $1,000. A summary of the law, and a comparison with the District of Columbia law, is provided below.  

Note that the Montgomery County law makes clear the term “applicant” includes a current employee seeking a promotion.  The District of Columbia law is less clear on this issue and defines "applicant" as "any person considered or who requests to be considered for employment by an employer."

Montgomery County's law appears to apply only in those situations where an offer of employment has been made to the applicant following the initial interview.  It does not appear to require any particular action by an employer in those situations where the post-interview criminal background check is positive, but no offer of employment has yet been made.

  District of Columbia Montgomery County

To whom does the "Ban the Box" law apply?

Employers with 10 or more employees whose work location is in whole or in part in the District.

Employers with 15 or more full-time employees in Montgomery County.

(Original bill applied to employers with 10 or more employees in Montgomery County.)

What are exceptions to the application of the law?

Where law requires consideration of an applicant's criminal history for purposes of employment (e.g., financial institutions are required by certain laws to inquire about criminal histories),

OR where a position is designated by the employer as part of a government program or obligation designed to encourage employment of those with criminal histories,

OR to facilities that provide programs, services or direct care to minors or vulnerable adults.

Where law expressly permits inquiry into an applicant's criminal history prior to initial interview,

OR employers that provide programs, services or direct care to minors or vulnerable adults. The law specifically excepts the County Police Department, the County Fire and Rescue Service, and the County Department of Corrections and Rehabilitation.

At what point in the process is an employer permitted to inquire about an applicant's criminal history?

Only after a "conditional offer" is made.

Only after an “initial interview.”  An “interview” is any direct contact with the applicant, in person, by telephone, or internet (e.g., by Skype™ or VOIP), to discuss

(a) the employment being sought, or

(b) the applicant's qualifications.  

Direct contact made merely for the purpose of scheduling a discussion does not constitute an “interview,” nor does written correspondence or email.  

(The original bill prohibited any inquiry about an applicant's criminal history before a conditional offer of employment had been made)

Are there any aspects of a criminal history about which an employer may not ask?

After conditional offer, an employer may ask about and conduct investigation ONLY of convictions or pending criminal charges.  Employers may not inquire about arrests.

After initial interview, an employer may ask about and conduct investigations of the applicant's conviction and arrest record.

If the investigation reveals that an applicant has a criminal history, what are the employer's obligations?

Before taking adverse action, the employer should consider the following factors:

(1) The specific duties and responsibilities of the position;

(2) The bearing, if any, the previous offense will have on the applicant's ability to perform the duties or responsibilities of the position;

(3) The amount of time that has elapsed since the commission of the offense;

(4) The age of the applicant at the time of the offense;

(5) The frequency and seriousness of the offense; and

(6) Any information produced by the applicant or on her behalf regarding her rehabilitation and good conduct since the commission of the offense. 

Before rescinding a conditional offer of employment or promotion based upon criminal history, the employer must do the following:

(1) Provide the applicant with a copy of the criminal record report;

(2) Notify the applicant of the contemplated adverse action and the items upon which the prospective adverse action is based;

(3) Delay withdrawal of a conditional offer of employment for 7 days to permit the applicant to provide notice of the inaccuracy of any item in the criminal history upon which the intention to withdraw the conditional offer is based.

(The original bill included restrictions on what types of criminal history could be considered by employers, and a list of factors that the employer must consider before making a decision about whether to withdraw a conditional offer of employment)  

What are the applicant's obligations following an adverse action?

If  the employer takes adverse action, the applicant may within 30 days request the following:

(1) a copy of all records procured by the employer regarding the applicant, including criminal records, and

(2) a notice that advises the applicant of his or her opportunity to file an administrative complaint with D.C.'s Office of Human Rights.

See above. Upon receiving notice from the employer of an intention to withdraw a conditional offer, the applicant has 7 days within which to provide notice of the inaccuracy of any item in the criminal record report upon which the employer's intended withdrawal of the offer is based.

What further obligations does the employer have?

If the employee makes a timely request for the records and notice set forth above, the employer must provide the records and notice within 30 days of the request.

After 7-day delay period, if employer still intends to withdraw a conditional offer, employer must notify applicant of the final decision in writing.

What are the penalties for violations of the law?

Between $1,000 and $5,000, depending upon size of employer.

Up to $1,000 in fines.

(revised version of the law removed various other potential damage claims)

Who decides whether there has been a violation?

The D.C. Office of Human Rights.

County Commission on Human Rights.

(revised version of the law eliminated the option for the applicant to file a lawsuit against the prospective employer)

The preceding is provided for informational purposes and is not intended as legal advice.  The publication of this article does not create an attorney/client relationship.  Application of the laws will be dependent upon the situation under which a claim may arise.