Changes For Job Application Criminal History Disclosure

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.

Job seekers who have a criminal history usually get passed over by potential employers after they check the box on the job application indicating that they have a prior criminal record. Many jurisdictions are now changing laws to prevent employers from requiring such disclosures before hiring.

This change is known as “ban the box.” So far, 13 states and numerous counties and municipalities have enacted such laws to give second chances to individuals with prior criminal records.

In the past eight months, the District of Columbia, Baltimore County, Montgomery County, and Prince George’s County have passed versions of “ban the box” laws that restrict, in varying degrees, required disclosures regarding prior criminal convictions when applying for employment.

The Commonwealth of Virginia has not yet enacted a version of “ban the box” statewide, but a number of jurisdictions such as Alexandria, Richmond, Newport News, and Norfolk have passed local laws prohibiting the disclosure of criminal history for many types of public employment.

In the District of Columbia, the D.C. Council passed a sweeping law that offers some of the strongest protections thus far. The Fair Criminal Record Screening Act forbids a covered employer from ever requiring an applicant to disclose or reveal an arrest or a criminal accusation that did not result in a conviction or is not pending in court.

A covered employer may seek information about an applicant’s previous criminal convictions only after it has provided a conditional offer of employment to the applicant. The employer cannot rescind the offer unless it can justify the withdrawal for a legitimate business reason based on the following factors:  1) time elapsed since the offense, 2) types of duties and responsibilities of the position sought, 3) age of the employee at the time of offense, 4) the seriousness of the offense, 5) evidence of rehabilitation since the offense, and 6) the bearing of the criminal offense for which the person was convicted will have on the person’s fitness or ability to perform the duties and responsibilities of the position sought.

If the employer does not follow the rules properly, the applicant can file a complaint with the D.C. Office of Human Rights and the employer may be subject to sanctions.

In the state of Maryland, Baltimore County, Montgomery County, and Prince George’s County have similar but varying new laws that attempt to make it easier for individuals with a prior criminal record to make a fresh start.

Too often, a mistake made by an individual in high school or college prevents him or her from moving ahead with his or her career even decades later.  These new laws attempt to help level the playing field for otherwise qualified individuals by giving them a fair chance to compete for jobs.

Our law firm represents and advises individuals and private sector employers on employment-related matters. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.  Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.