Veto Override: New "Ban the Box" Legislation Takes Effect February 29, 2020

On January 30, 2020, the Maryland General Assembly voted to override Governor Hogan’s veto of a 2019 bill prohibiting Maryland employers with 15 or more full-time employees from making criminal history inquiries before the first in-person interview.  This new law will take effect on February 29, 2020.

Who Must Comply?  This new law applies to all employers in Maryland with 15 or more employees.  Because this law does not preclude the enactment or enforcement of other laws on this issue, the more stringent laws in Baltimore City, Prince George’s County, and Montgomery County remain in effect.

Are There Exceptions?  The law does not apply to an employer that provides programs, services, or direct care to minors or vulnerable adults.  The law also does not preempt state or federal laws requiring or authorizing pre-interview criminal history screening practices.

Who is Protected?  This law provides protections outside the traditional employer-employee relationship, covering workers who would be engaged in the following capacities: work for pay and any form of vocational or educational training (with or without pay), as well as contractual, temporary, seasonal, or contingent work and work through the services of a temporary or other employment agency.

What Does The Law Prohibit?  This new law prohibits covered employers from requiring an applicant to disclose – before the first in-person interview – whether the applicant has a criminal record or if criminal accusations have been made against the applicant.  However, these questions may be asked during the first in-person interview.

Under this new law, covered employers will be required to remove the question “have you ever been convicted of a crime” (and similar criminal history questions) from all employment applications and screening questionnaires to which an applicant is required to respond before the first in-person interview.

How Far Does This Law Go?  This law does not create any procedural or compliance requirements for the criminal background check process itself; it only prevents any inquiry – on an application or otherwise - before the first in-person interview.  Employers using consumer reporting agencies to conduct criminal background checks are required to comply with the federal Fair Credit Reporting Act.  Prince George’s County and Montgomery County criminal background check laws contain specific procedural requirements that are more restrictive than the Fair Credit Reporting Act, which must be followed if applicable.

What is a Criminal Record?  Under this law, the term “criminal record” is defined as including arrest, guilty plea or guilty verdict, plea of nolo contendere, marking of a charge as “stet” on a docket, probation before judgment, or disposition as not criminally responsible.  The law does not define what the term “criminal accusation” means.

Retaliation Prohibited.  An applicant or employee who complains of a violation of this law to the Maryland Department of Labor is protected from retaliation, discrimination, or discharge.  It appears that an employer who violates this statute will receive only an order compelling compliance for the first violation, but may be subject to monetary penalties of up to $300 per applicant or employee for each subsequent violation.

Did You Know about the Baltimore City, Prince George’s County, and Montgomery County Laws?

  • Baltimore City: Employers with 10 or more full-time equivalent employees in the city limits may not inquire about criminal history on employment applications or conduct background checks at any time before extending a conditional offer of employment, except as required by applicable law.  This law does not apply to employers providing programs, services, or direct care to minors or vulnerable adults.
  • Montgomery County: Employers with 15 or more full-time employees in the county may not inquire about criminal history or conduct a criminal background check until after the first interview, except as required by applicable law.  If an adverse employment decision is made based on an applicant’s criminal record after a conditional offer is made, notice and procedural requirements apply beyond Fair Credit Reporting Act requirements.  This law does not apply to employers who provide services to minors or vulnerable adults.
  • Prince George’s County: The law in Prince George’s County is the same as that in Montgomery County except that it applies to employers with 25 or more full-time employees in the county. 

What Should Employers Do Now?

  • Get Ready:  Employers with 15 or more full-time employees should review all applications and screening questionnaires to ensure that criminal history questions are removed.  Remember, employers who are in the business of providing programs, services, or direct care to minors or vulnerable adults do not need to change their applications and questionnaires.  Also, employers who are required by state or federal law to engage pre-interview criminal history screening practices must still comply with those laws.
  • Check Your Compliance:  If you do business in Baltimore City, Montgomery County, or Prince George’s County, this is a good time to review your compliance with the criminal history screening requirements in those jurisdictions.  Although each jurisdiction’s law on criminal history screening practices is different, you should already have compliant criminal history screening protocols in place.
  • Employees in Multiple Jurisdictions? If you have employees throughout Maryland, consider developing standardized applications, screening questionnaires, and hiring practices that are consistent with the most restrictive county or state laws that apply to your workforce.  While this may result in extending rights to applicants/employees who would not otherwise be covered, having a uniform practice and procedure may be more beneficial than addressing each individual on a jurisdiction-by-jurisdiction basis.
  • A Word to the Wise.  Despite the language of these laws, we do not recommend conducting background checks of any kind before making a conditional offer of employment because employee authorizations (and background check results) may contain information, such as dates of birth that an employer may not consider when making an employment decision. 

Melissa Calhoon Jones, co-chair of the labor and employment group, counsels companies on employment, labor, and immigration issues.  For more information about these new amendments and other employment concerns, please contact her.

This information has been prepared by Tydings for informational purposes only and does not constitute legal advice.