District of Columbia — Hiring & Onboarding

Under the Fair Criminal Record Screening Amendment Act of 2014, employers with more than 10 employees in the District may not inquire about or require an applicant to disclose criminal convictions until after making a conditional offer of employment. The prohibition also bars any inquiry into arrests or criminal accusations that are not pending or did not result in conviction. A conditional offer is one contingent on the employer's subsequent inquiry into criminal records or other employment-related criteria. The timing restriction does not apply where federal or DC law requires consideration of criminal history, to positions under government programs designed to employ those with criminal histories, or to facilities providing care to minors or vulnerable adults.

Source: D.C. Code § 32-1342

Every employer conducting business in the District of Columbia must report newly hired, rehired, and recalled employees to the District of Columbia Directory of New Hires within 20 days of the employee's hire date under D.C. Code § 46-226.06(b). The statute defines "hire date" as the first day that the employee performed services for compensation. The reporting obligation applies to all employers regardless of size—there is no small-employer exemption.

Covered employees. The reporting requirement extends to new hires, rehires, and recalls. A "rehire" includes any employee who returns to work after 60 days or more of being laid off, furloughed, separated, granted leave without pay, or terminated. A "recall" includes anyone who remains on the payroll during a break in service or gap in pay and then returns to work—for example, teachers, substitutes, and seasonal workers who are re-engaged after a period of no work. "Employee" is defined by reference to chapter 24 of the Internal Revenue Code (26 U.S.C. § 3401 et seq.)—effectively, a person for whom the employer withholds income tax. The statute contains one narrow exclusion: employees of federal or state agencies performing intelligence or counterintelligence functions are exempt if the agency head determines that reporting could endanger the employee or compromise an ongoing investigation or intelligence mission (D.C. Code § 46-226.06(l)(1)).

Required information. Under subsection (b), the employer must report seven data elements:

1. Employee's full name (first, middle, and last);
2. Employee's address;
3. Employee's Social Security number;
4. Employee's date of birth;
5. Employer's name;
6. Employer's address;
7. Employer's federal employer identification number (FEIN) under 26 U.S.C. § 6109.

The employer may also voluntarily report the employee's date of hire and whether medical insurance coverage is available and when the employee becomes eligible for that coverage (D.C. Code § 46-226.06(c)).

Submission methods and electronic-filing alternative. Reports may be submitted in paper form (by mail or fax) or electronically. Employers that transmit reports magnetically or electronically receive an alternative timeline: they may submit reports in up to two monthly transmissions, not less than 12 days nor more than 16 days apart, in lieu of the 20-day-per-employee deadline (D.C. Code § 46-226.06(e)). This permits batch reporting for employers with frequent hiring activity.

Multistate employers. An employer with employees in multiple states may either (1) report each new hire to the state where the employee works, or (2) designate a single state for centralized electronic reporting and notify the U.S. Department of Health and Human Services of that election. If the employer elects centralized reporting, it must use electronic transmission and meet the two-monthly-transmissions requirement.

Civil penalties. An employer that fails to comply with the reporting requirement is subject to a civil penalty of $25 per employee for each employee not reported (D.C. Code § 46-226.06(i)). If noncompliance is the result of a conspiracy between the employer and the employee not to supply the required report or to supply a false or incomplete report, the penalty increases to $500 per employee. The statute specifies that the employer "shall be penalized each calendar month until the employer complies," meaning that penalties accrue monthly for continuing failures. Penalties are enforced in court by the D.C. Attorney General. The Mayor is authorized to establish a procedure by which an employer may challenge the imposition of a penalty, with a right to judicial review under D.C. Code § 2-510 (D.C. Code § 46-226.06(k)).

Purpose. The reporting obligation flows from the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), 42 U.S.C. § 653a, which requires every state to operate a new hire directory. The District's IV-D child support agency uses the data to locate noncustodial parents, establish paternity and support orders, and issue income-withholding orders. The data also support detection and prevention of fraud in unemployment insurance, workers' compensation, and public-assistance programs.

Source: D.C. Code § 46-226.06