New Rule of Evidence Provides Employers with Safe Harbor for Hiring and Retaining Persons Who Have Criminal Records

Effective June 15, 2013, employers in the District of Columbia may avail themselves of a new rule of evidence that provides a safe harbor for hiring and retaining persons who have criminal records.

The new rule of evidence, which was enacted as part of the Re-Entry Facilitation Amendment Act of 2012 (L19-319), states that “[i]nformation regarding a criminal history record of an employee or a former employee shall not be introduced as evidence in a civil action against an employer or its employees or agents if that information is based on the conduct of the employee or former employee,” and the employer’s decision to hire and/or retain the employee falls within a safe harbor.

The rule further states that, to fall within the safe harbor, the employer must have made “a reasonable, good-faith determination” in deciding to hire or retain the employee that consideration of the following factors favored its decision:

(1) The specific duties and responsibilities of the position being sought or held;

(2) The bearing, if any, that an applicant’s or employee’s criminal background will have on the applicant’s or employee’s fitness or ability to perform one or more of the duties or responsibilities related to his or her employment;

(3) The time that has elapsed since the occurrence of the criminal offense;

(4) The age of the person at the time of the occurrence of the criminal offense;

(5) The frequency and seriousness of the criminal offense;

(6) Any information produced regarding the applicant’s or employee’s rehabilitation and good conduct since the occurrence of the criminal offense; and

(7) The public policy that it is generally beneficial for persons with criminal records to obtain employment.

An important practical effect of this new rule of evidence is to limit employer liability for negligence claims premised on the theory that an employer was negligent because it hired and/or retained a person who has a criminal record.