Background Check Laws: District of Columbia Scott J. Wenner and Joleen Okun, Schnader Harrison Segal & Lewis LLP

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1 Background Check Laws: District of Columbia Scott J. Wenner and Joleen Okun, Schnader Harrison Segal & Lewis LLP This Article is published by Practical Law Company on its PLC Law Department web service at A Q&A guide to background check laws in the District of Columbia. RELEVANT BACKGROUND CHECK LAW 1. Please list each state statute or regulation governing background checks (for example, state equivalents of the federal Fair Credit Reporting Act and state law governing criminal background checks or driving records). Include law governing both criminal background checks and noncriminal background checks. For each, please: Provide a brief description of the statute or regulation. Identify which employers are covered. Identify which employees are covered (for example, all employees or only those in specific job functions, such as commercial driving). Describe whether it provides for a private right of action. Identify the state agency or entity that administers the statute. LIE DETECTORS: DC CODE TO District of Columbia (DC) employers cannot administer, accept or use the results of a polygraph exam or lie detector test in connection with: Considering whether to hire someone. The continued employment of a worker. In addition, an employer may not demand that an employee or prospective employee submit to a lie detector test. A waiver does not protect the employer from liability for administering or demanding a polygraph exam. The law covers all employers that do business in DC, except for the federal government and its agencies. The law covers all employees who perform work for compensation (either wholly or partially) within DC, except for employees of the federal government, foreign governments and international organizations recognized by the President (22 U.S.C. 288). Any employee who is unlawfully required to submit to a polygraph test by his employer may bring a civil lawsuit to recover damages and reasonable attorneys fees. There is no agency responsible for administering this law in DC. An application for employment. Copyright 2011 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved.

2 FMLA Background Employer Check Coverage Laws: District and Employee of Columbia Eligibility Checklist MEDICAL INQUIRIES: DC MUN. REG. TIT. 4, 509 AND DC MUN. REG. TIT. 4, Genetic Testing, DC Mun. Reg. tit. 4, 509. In the employment context, genetic testing may be used only to: Determine whether the employee or applicant has a bona fide occupational qualification, with the employee s written informed consent. Investigate a workers compensation or disability claim. Determine an employee s susceptibility or exposure to potentially toxic substances in the workplace, with the employee s written informed consent. Medical History, DC Mun. Reg. tit. 4, Inquiries regarding a job applicant s physical condition or medical history must be based on a business necessity. These laws apply to all employers within DC. These laws apply to all employees and applicants for employment within DC. These laws do not create a private right of action. The DC Office of Human Rights oversees these laws. CRIMINAL RECORDS BACKGROUND CHECK, GENERALLY: DC CODE Generally, DC employers can obtain certain types of criminal records (those held by the DC Metropolitan Police Department or the DC Superior Court) and use the information for any purpose, such as employment screening. Under this statute, an employee or applicant s arrest record may be obtained from the DC Metropolitan Police Department: At the employer s expense. With the employee or applicant s notarized permission. These arrest records may only list convictions and forfeitures of collateral that occurred within ten years of the date the records are requested. For records held by the DC Superior Court, an employer may search for an employee or applicant record for free using the court clerk s computers or request the information from the court clerk for a small fee. This law applies to all employers within DC. This law applies to all employees in DC. This law does not create a private right of action. The DC Metropolitan Police Department administers and enforces this provision. It is charged with assuring proper access to and use of arrest records. The DC Office of Human Rights ensures that employees and prospective employees are not charged for the cost of obtaining copies of criminal records made available to employers. Certain healthcare facilities or providers must obtain criminal background checks for persons who are both: Not licensed healthcare professionals. Seeking employment or contract work that is likely to bring them into direct contact with patients. These facilities may also conduct non-mandatory criminal background checks for any employee or volunteer who provides services at the facility. The law covers licensed healthcare facilities or providers of Medicaid services, including: Hospitals. Maternity centers. Nursing homes. Group homes. Hospices. Home care agencies. Ambulatory surgical facilities. Assisted living residents. Nursing facilities. Home healthcare services. The law covers prospective employees and contract workers at a licensed healthcare facility or provider of Medicaid services (see above). Copyright 2011 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved. 2

3 A facility also may conduct a non-mandatory criminal background check of any employee or volunteer who provides services at the facility. Exceptions to this law protect the following classes from mandatory background checks: Healthcare professionals licensed by a professional board or commission, including the DC Board of Nursing. Persons employed by the employer on or before July 23, Healthcare facility volunteers who work directly under the supervision of a licensed healthcare professional. The law does not provide for a private cause of action. The Mayor may issue rules enforcing and administering DC Code Sections to Background checks may be obtained from: The DC Metropolitan Police Department. The US Department of Justice. A private investigator or agency that performs background checks. Employees and unsupervised volunteers of child or youth services providers, and applicants for paid employment or unsupervised volunteer service with those providers, must submit to a criminal background check. The requirement for volunteers applies if the volunteer has direct contact with children. If an employee or volunteer transports children in the course of performing their duties, the employer must also perform a traffic record check. The law applies to any DC agency or private entity that contracts with DC to provide direct services to children or youth. The law applies to any person who has applied for or holds: A paid position at a childcare center or youth services provider. An unpaid unsupervised position with a provider. Private Cause of Action The law does not provide for a private cause of action. The Mayor may issue rules enforcing and administering DC Code Sections to relating to childcare providers. Background checks may be obtained from: The DC Metropolitan Police Department. The US Department of Justice. A private investigator or agency that performs background checks. The Department of Corrections must perform background checks on all employees every two years. The law covers the DC Department of Corrections. The law covers all DC Department of Corrections employees, including non-probationary employees. Private Cause of Action The law does not provide for a private cause of action. Background checks may be obtained from: The DC Metropolitan Police Department. The US Department of Justice. A private investigator or agency that performs background checks. NON-CRIMINAL BACKGROUND CHECK LAW 2. For any law identified in Question 1 addressing noncriminal background checks, list the key terms of art used and the definition of each. There are no key terms of art relating to non-criminal background checks. 3. For any law identified in Question 1 addressing noncriminal background checks, please describe potential penalties for violations of the law. LIE DETECTORS: DC CODE TO Employers who violate this law may be guilty of a misdemeanor and subject to a fine of $500, 30 days in jail or both. They also risk a civil lawsuit by the affected employee for damages and reasonable attorneys fees. 3 Copyright 2011 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved.

4 Background Check Laws: District of Columbia MEDICAL INQUIRIES: DC MUN. REG. TIT. 4, 509 AND DC MUN. REG. TIT. 4, These laws do not address potential penalties for violations. 4. For any law identified in Question 1 addressing non-criminal background checks, please describe the employers legal obligations. LIE DETECTORS: DC CODE TO The law does not address employers legal obligations. MEDICAL INQUIRIES: DC MUN. REG. TIT. 4, 509 AND DC MUN. REG. TIT. 4, Genetic Testing The employer must obtain the informed written consent of the applicant. All information obtained must be maintained in a separate, confidential file. Medical History The law does not address employers legal obligations. 5. For any law identified in Question 1 that functions as the state equivalent of the federal Fair Credit Reporting Act, please describe any significant differences between the state and federal law. None of the laws function as the DC equivalent for the federal Fair Credit Reporting Act (FCRA). However, DC has codified the FCRA under DC Code Sections to There are no significant differences between this section of the DC Code and the relevant sections of the FCRA. CRIMINAL BACKGROUND CHECK LAW 6. For any law identified in Question 1 addressing criminal background checks, please identify the law and describe: The key terms of art. The potential penalties for violations. CRIMINAL RECORDS BACKGROUND CHECKS, GENERALLY: DC CODE Terms of Art There are no key terms of art relating to criminal background checks. Violations are punishable by a fine of up to $300, ten days in prison or both. Terms of Art Key terms of art include: Contract worker. A compensated contractor who foreseeably will come in direct contact with patients. Criminal background check. An inquiry regarding previous convictions in the past seven years within the US. Unlicensed person. A person who assists licensed healthcare professionals in providing direct patient care or in performing common nursing tasks. An employer who violates this law may be subject to civil fines, penalties and fees. Releasing criminal records unlawfully is classified as a misdemeanor offense, which subjects a violator to 30 days in prison, up to a $300 fine or both. Terms of Art Key terms of art include: Applicant. One who has filed a written application to seek employment or a written or verbal request to serve as an supervised volunteer with a covered child or youth services provider. Children. Persons 12 years of age and under. Covered child or youth services provider. Any private entity that contracts with DC to provide services to children or youth. Criminal background check. An inquiry into a person s criminal history through the DC Metropolitan Police Department or the Federal Bureau of Investigation. Employee. Any person employed on a full-time, part-time, temporary or contract basis by a covered child or youth services provider. Supervised. Any person who is under the direct supervision at all times of an employee or volunteer who has received a current, satisfactory criminal background check. Youth. Persons between the ages of 13 and 17. Releasing confidential information is a criminal offense, punishable by a fine of up to $1,000, 180 days in prison or both. An employee or applicant who intentionally provides false Copyright 2011 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved. 4

5 information may be subject to prosecution under the DC Theft and White Collar Crime Acts of 1982 (DC Code ), which also carries the same penalty. Key Terms of Art There are no key terms of art relating to criminal background checks. The law does not address penalties for violations. 7. For any law identified in Question 1 addressing criminal background checks, please describe: The kind of criminal background information into which an employer may inquire. The kind of criminal background information into which an employer may not inquire (for example, expunged or juvenile records). Any other circumstances under which a criminal background inquiry may be limited (for example, where there is no business necessity). CRIMINAL RECORDS BACKGROUND CHECKS, GENERALLY: DC CODE Employers can review adult arrest records for offenses committed within the last ten years and that resulted in conviction or forfeiture of collateral. An employer may not obtain: Juvenile records. Records of alleged offenses that did not result in a conviction or forfeiture of collateral. Offenses that did not occur within the previous ten years. Employees may deny the existence of expunged criminal records that relate to illegal drugs without repercussions (DC Code Ann (d)(2)). The background check is to cover criminal convictions within the preceding seven years. There are no specifically unauthorized inquiries under this law. An employer must inform the prospective employee that it is required to conduct a criminal background check before hire. The law mandates a check of the applicant s criminal and driving history (see above). There are no specifically unauthorized inquiries under this law. The employer must notify the applicant of the kind of inquiry to be conducted, including both the criminal history and driving record search, if applicable. There are no specifically authorized inquiries under this law. There are no specifically unauthorized inquiries under this law. There are no other limitations for criminal background inquiries. 8. For any law identified in Question 1 addressing criminal background checks, please describe how an employer can collect criminal background information and what an employer can do with criminal background information, including: Whether and under what circumstances an application for employment in your state can include a question about convictions or arrests. Whether and under what circumstances criminal convictions or arrests can be used as a bar to employment generally. Whether and under what circumstances criminal convictions or arrests can be used as a bar to employment in specific jobs (such as child care). 5 Copyright 2011 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved.

6 Background Check Laws: District of Columbia CRIMINAL RECORDS BACKGROUND CHECKS, GENERALLY: DC CODE Although there is no DC law specifically barring questions about convictions or arrests on applications for employment, under Title VII of the Civil Rights Act of 1964 (Title VII), an application generally may not inquire into arrests. in Specific Jobs There is no bar to employment for specific jobs. An application generally may not inquire into arrests. in Specific Jobs A healthcare facility or provider cannot employ or contract with an unlicensed person who within the past seven years has been convicted within the US of any of the following offenses or their equivalent in another state or territory: Murder, attempted murder or manslaughter. Arson. Assault, battery, assault and battery, assault with a dangerous weapon, mayhem or threats to do bodily harm. Burglary. Robbery. Kidnapping. Theft, fraud, forgery, extortion or blackmail. Illegal use or possession of a firearm. Rape, sexual assault, sexual battery or sexual abuse. Child abuse or cruelty to children. Unlawful distribution of or possession with intent to distribute a controlled substance. Employees will also be barred if their name appears on the Nurse Aide Abuse Registry. An application generally may not inquire into arrests. in Specific Jobs An applicant cannot be employed by a child or youth services provider if, in relation to any sexual offense involving a minor, he has: Been convicted. Pled nolo contendere. Been placed on probation awaiting judgment. Been found not guilty by reason of insanity. A currently docketed case. An application generally may not inquire into arrests. in Specific Jobs There is no bar to employment for specific jobs. 9. If your state has a statute or regulation protecting the employment rights of persons with criminal records, please identify the statue or regulation and briefly describe the rights it confers. A job applicant has the right not to incur any cost when an employer obtains his arrest record (DC Mun. Reg. tit. 4, 503.7). EMPLOYER LIABILITY 10. Have courts in your jurisdiction recognized privacy claims brought by applicants or employees as a result of an employer s conducting a background check? If so, please name any relevant cases and briefly describe their holdings. No case law recognizes an actionable privacy right in these circumstances. Copyright 2011 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved. 6

7 11. Have courts in your jurisdiction recognized negligent hiring, negligent supervising or negligent retention claims brought by employees, customers or others associated with the employer as a result of allegedly flawed background checks? If so, please name any relevant cases and briefly describe their holdings. SOCIAL NETWORKING 13. Are there statutes, regulations, cases or any other guidance in your state on an employer s use of social networking or other online searches of applicants or employees for employment background check purposes? If so, please briefly characterize them. No DC court has recognized a cause of action for conducting allegedly flawed background checks. However, there are wellestablished causes of action for negligent hiring and negligent retention that suggest employers could be held liable for either: Conducting a negligent or inadequate background check. Negligently failing to conduct any background check at all. (See Schechter v. Merchants Home Delivery, Inc., 892 A.2d 415 (D.C. 2006)) District case law requires that employers use reasonable care in hiring suitable employees. If the employer is negligent in this duty and a third party is injured, the employer may be liable even if the employee was acting outside the regular scope of his employment. In Fleming, the court notes that this rule has been applied in varied cases (Fleming v. Bronfin, 80 A.2d 915 (D.C. 1951)). In Schechter, the court found that one could reasonably consider independent contractors to be employees when a delivery company performed background checks on and trained those contractors extensively. To recover damages based on a claim of negligent hiring or retention, the court in Fleming held that a plaintiff must prove the employer s negligence and not just rely on the vicarious liability of the employer. RELEVANT REFERENCES LAW 12. If your state has any law governing employment references, please identify that law and: Describe any requirements for obtaining references for employees or applicants. Describe any requirements for giving references for employees or former employees (including any provision insulating employers from or exposing employers to liability because of references given). OBTAINING REFERENCES There are no applicable laws governing obtaining employment references. GIVING REFERENCES There are no applicable laws governing giving employment references. There are no applicable laws governing social networking. 14. If the state agency charged with oversight of background check or references laws in your state has useful on-line guidance or forms, please provide the link for those resources and a brief description of them. ADDITIONAL RESOURCES 15. Please describe any other significant background check or reference laws, cases or requirements specific to your state not otherwise addressed in this survey. There are no additional resources relating to background check or Practical Law Company provides practical legal know-how for law firms, law departments and law schools. Our online resources help lawyers practice efficiently, get up to speed quickly and spend more references time on laws. the work that matters most. This Article is just one example of the many resources Practical Law Company offers. Discover for yourself what the world s leading law firms and law departments use to enhance their practices. Contact Us There are no other significant background check or reference Practical Law Company 747 Third Avenue, 36th Floor New York, NY laws, cases or requirements in DC Copyright 2011 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved. Use of PLC websites and services is subject to the Terms of Use ( and Privacy Policy (

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