Employer Use of Arrest and Conviction Records in the District of Columbia

DC law protects employers who make a reasonable, good faith decision to hire ex-offenders.

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For the estimated one in four Americans with a criminal record, job hunting can be difficult. Surveys consistently show that a majority of employers –92%, according to one survey – perform criminal background checks when hiring, at least for certain positions. If your check reveals arrests or convictions, you might find it tough to compete in the job market.

However, there are some legal protections for job seekers with criminal records. Federal laws place some limits on how employers can use these records in making job decisions. However, the District of Columbia doesn’t restrict employer access to, or use of, criminal records.

Federal Protections for Job Seekers

Two federal laws give some protection to applicants with criminal records. The Fair Credit Reporting Act (FCRA) addresses the problem of inaccurate information in reports. Criminal background checks may include errors, such as misclassification of crimes, information on convictions that have been expunged, multiple listings of the same offense, incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), and even records that belong to another person with the same name.

The FCRA imposes obligations both on employers who request criminal background checks and on the firms that provide them. Employers must:

  • Get the applicant’s written consent before requesting a check.
  • Inform the applicant if the employer plans to screen him or her out based on the contents of the report. In this situation, the employer must also give the applicant a copy of the report.
  • Notify the applicant once the employer makes a final decision not to consider the applicant based on the report.

Firms that provide background checks must take reasonable steps to make sure that the information they provide is current and accurate. If you dispute what’s in the report, the agency must conduct a reasonable investigation. If the investigation reveals that the report was incorrect, the agency must inform you and any other person or company to whom it has provided the report.

Title VII of the Civil Rights Act of 1964 protects applicants and employees from discrimination in every aspect of employment, including screening practices and hiring. Because arrest and incarceration rates are so much higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination.

The Equal Employment Opportunity Commission (EEOC) has issued guidance for employers, explaining how they can screen out applicants who criminal records pose an unreasonable risk without discriminating. Employers who conduct criminal background checks must consider the type of offense, how serious it was, how long ago it was committed, and the nature of the job (including how much supervision the employee will have and how much the employee will be required to interact with others) in deciding whether a particular offense is disqualifying. And, the EEOC has said that employers should give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.

District of Columbia Law Protects Job Seekers

The District of Columbia recently passed a law to encourage employers to hire applicants with a criminal record. The law provides a legal defense to an employer who is sued by a third party who is harmed by the employee's conduct. Evidence of employee's criminal record may not be introduced in such a lawsuit if the employer made a reasonable, good-faith determination that these factors favored hiring or retaining the employee:

  • the specific duties and responsibilities of the job
  • how the criminal history will bear on the employee's fitness or ability to perform the job duties
  • how long it has been since the offense
  • the employee's age at the time of the offense
  • the frequency and seriousness of the offense
  • any information produced regarding the employee's rehabilitation and good conduct since the offense, and 
  • the public policy that it is generally beneficial for those with criminal records to obtain employment.

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