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

Jul 6th, 2013 | By Douglas C. Melcher | Category: Short Articles

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), provides 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. 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. To retrieve an electronic copy of the “Re-Entry Facilitation Amendment Act of 2012″ (L19-319) from the D.C. Council’s website, click here.

About the Publisher: The D.C. Law Report is published by Douglas C. Melcher. Mr. Melcher is a licensed attorney and an active member of the District of Columbia Bar with more than a decade of experience in the private practice of law in the District of Columbia. He is a civil litigator with experience litigating a wide range of matters, including torts cases. He has written numerous articles for The D.C. Law Report and other publications, and is the author of the book Tort Claims and Defenses in the District of Columbia. To learn more about Mr. Melcher, click here. To learn about Mr. Melcher’s book, click here.

p5rn7vb