Ban the Box – A Warning for Employers on Both Sides of the Potomac

By Brent J. Schultheis, Esq.


In this election season, it’s difficult to ignore the role that criminal justice and business regulation have played in the national discourse. What employers may not realize is the way in which these two, seemingly different issues are impact
their business.

We don’t hear about it from the TV pundits, but so-called “Ban the Box” laws, a reference to the box on an employment application the prospective employee must check to disclose criminal charges, are taking root across the country. We should cheer the goal of these
policies, as a conviction can pose a staggering barrier to re-entering or rehabilitated citizens seeking employment. But if you’re an employer in the D.C. area, you should take care to learn whether these laws apply to you. Having your heart in the right place is not enough.

The obligations and potential liability in this area are much greater for employers in the District, than what Virginia companies face. D.C.’s Fair Criminal Record Screening Act of 2014 forbids all covered employers (any person or company that employs more than 10 people in the District) from inquiring about or making an applicant disclose arrests or criminal accusations that are not then pending, or that did not result in a conviction. The employer can make inquiries about an applicant’s criminal convictions (e.g., by conducting a background check), but only after it extends a conditional offer of employment to the applicant. At that point, the offer can be withdrawn only for a “legitimate business reason” that takes into account the duties of the position, the bearing of the crime on the applicant’s ability to perform the job, and the time elapsed since the offense. This law doesn’t create a private cause of action for would-be employees to sue in court, but it does allow them to seek administrative penalties from $1,000 to $5,000 against the employers.

Virginia businesses, on the other hand, can rest easy – for now. Currently, there is no Virginia law barring private companies from inquiring into an applicant’s criminal history prior to offering employment. A 1977 statute does prohibit employers from requiring prospective employees to answer polygraph questions about their sexual activities as a condition of employment, but employers may ask even these questions if the conduct resulted in a conviction. Still, there may be momentum to take the law in D.C.’s direction. Governor McAuliffe issued Executive Order 41 last year, directing that certain questions relating to criminal history be removed from the state employment application. A growing number of cities are also prohibiting these inquiries in their own applications. Clearly, the political winds are blowing and this issue is not going away. Employers can only wait and see whether those forces end up banning the box, or keeping it as a mainstay of Virginia’s employment landscape.

BrentSchultheisTo find out more about this topic, please contact Brent at (703) 836-1000.


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