D.C. ban-the-box law: the Fair Criminal Record Screening Act

The District of Columbia's ban-the-box law, the Fair Criminal Record Screening Amendment Act of 2014 (D.C. Code sections 32-1341 to 32-1346), applies to employers with more than 10 employees in D.C., private and public. It bars any inquiry about arrests, and about criminal accusations that are not pending or did not end in a conviction, at any stage. Questions about convictions must wait until after a conditional offer, and the offer may then be withdrawn only for a legitimate business reason judged against six factors. For recruiters, the important detail is how broadly the Act defines an "inquiry": application questions, interview questions and background checks all count.

The statute

The Act took effect December 17, 2014 (D.C. Law 20-152). The core rules are in section 32-1342:

• (a) Never. An employer may not make an inquiry about or require disclosure of an arrest, or a criminal accusation that is not then pending or did not result in a conviction.
• (b) After the offer. An employer may not make an inquiry about or require disclosure of a criminal conviction "until after making a conditional offer of employment."
• (c) Exceptions. The prohibitions do not apply where a federal or District law or regulation requires considering criminal history; to a position the employer designates as part of a federal or District program designed to encourage employment of people with criminal histories; or to any facility or employer that provides programs, services or direct care to minors or vulnerable adults.
• (d) Withdrawing the offer. After a conditional offer, the employer may withdraw it or take adverse action "only" for a legitimate business reason that is reasonable in light of six factors.
• (e) Records request. An applicant who believes an offer was withdrawn because of a conviction may ask, within 30 days, for copies of the records the employer procured and a notice of the right to file with the Office of Human Rights. The employer must provide them within 30 days of receiving the request.

Who is covered

Under section 32-1341, an employer is "any person, company, corporation, firm, labor organization, or association, including the District government, but not including the courts, that employs more than 10 employees in the District of Columbia." The Office of Human Rights' Guidance No. 16-02 puts it as 11 or more employees and says the law does not apply where the federal government is the employer. Employment covers work "where the physical location of the employment is in whole or substantial part" within D.C., and expressly includes temporary, seasonal, contracted and contingent work and "work through the services of a temporary or other employment agency."

Definitions that change how you screen

• Inquiry means "any direct or indirect conduct intended to gather criminal history information from or about an applicant using any method, including application forms, interviews, and criminal history checks."
• Interview means "any direct contact by the employer with the applicant, whether in person or by telephone, to discuss the employment being sought or the applicant's qualifications." A recruiter's phone screen fits that description.
• Conditional offer means an offer conditional solely on the results of the employer's later criminal record inquiry, or on another employment-related contingency expressly communicated at the time of the offer.

OHR's guidance gives examples. An interviewer who searches online for the "legal situation" a candidate mentioned likely made a prohibited pre-offer inquiry. An online application that cannot be submitted without authorizing a criminal background check also likely violates the Act.

The six factors and the records request

After a conditional offer, the employer's legitimate business reason must be reasonable in light of:

1. The specific duties and responsibilities necessarily related to the job.
2. The bearing, if any, the offense will have on the applicant's fitness or ability to perform one or more of those duties.
3. The time that has elapsed since the offense.
4. The applicant's age at the time of the offense.
5. The frequency and seriousness of the offense.
6. Any information the applicant produces, or that is produced on their behalf, about rehabilitation and good conduct since the offense.

The Act does not require the employer to send a preliminary notice before withdrawing the offer. Instead, it gives the applicant the 30-day records request in 32-1342(e). Because the sixth factor turns on information the applicant produces, giving the candidate a chance to submit it before the decision is the practical way to show the factors were weighed.

Staffing agencies and recruiters

Because employment includes work through a temporary or other employment agency, and the definition of employer covers any company with more than 10 employees in D.C., the definitions point to a staffing firm meeting that threshold being covered for the people it places in D.C. When the agency screens for a client, its questions and checks are part of the client's process. Practical consequences:

• No arrest, accusation or conviction questions on agency registration forms or screens for D.C. roles.
• No background check authorization as a condition of applying. Run checks only after a conditional offer.
• No online searches for records before the offer, by recruiters or hiring managers.

Penalties and enforcement

Under section 32-1343, an aggrieved person may file an administrative complaint with the Office of Human Rights, and the administrative remedies are exclusive: there is no private cause of action in court. OHR's guidance says complaints must be filed within one year of the alleged violation or its discovery, and that mediation is mandatory before investigation. Under section 32-1344, if the Commission on Human Rights finds a violation, it "shall impose" fines, half awarded to the complainant:

How it fits with FCRA adverse action

After the conditional offer, a check through a screening company triggers the FCRA: a stand-alone disclosure and written authorization, then a pre-adverse action notice with a copy of the report and the summary of rights, a reasonable wait, and an adverse action notice. The FCRA pre-adverse step is a natural point to invite the rehabilitation information the sixth factor calls for. See the FCRA background check process and background check notification emails.

How D.C. compares with Maryland

Desks that cover the D.C. area often handle District and Maryland roles side by side. The two laws draw the line in different places:

A single process that waits for a conditional offer, never asks about arrests and keeps the records the employer relied on satisfies D.C.'s stricter timing and can be used for Maryland roles too.

A script for D.C. screens

Candidate volunteers a past arrest: "Thanks for telling me, but that isn't something employers here consider, and I won't note it. Let's talk about the role."

Candidate asks about a background check: "If there is one, it happens only after a conditional offer. If anything in it led the employer to reconsider, you can ask for copies of what they relied on."

Hiring manager asks you to look the candidate up: "In D.C., searching for a record before the offer counts as an inquiry. Let's wait for the background process after the offer."

A D.C. checklist for recruiting desks

1. Confirm the client has more than 10 employees in D.C. and whether a 32-1342(c) exception applies, in writing.
2. Remove criminal history questions and background check authorizations from applications and pre-offer forms.
3. Treat every recruiter call as an interview under the Act. Keep criminal history out of it and out of notes; see what not to write in interview notes.
4. Make offers explicitly conditional, and say what they are conditional on.
5. Keep the records the employer relied on so it can answer a 30-day request.
6. For Maryland roles on the same desk, see Maryland's law; for other states, ban-the-box laws and interview questions.