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Md.: Baltimore Becomes 10th Jurisdiction to ‘Ban the Box’
 

By Philip L. Gordon and Zoe M. Argento © Littler Mendelson  5/20/2014
 

On May 15, 2014, the City of Baltimore, Maryland, became the 10th U.S. jurisdiction to "ban the box" by passing legislation restricting private employers from inquiring into the criminal history of job applicants.

The "box" refers to the once ubiquitous criminal history check-box on employment applications. Concerned that rejection during the hiring process leads to high unemployment and recidivism among ex-offenders, an increasing number of U.S. jurisdictions have enacted "ban-the-box" legislation. Since late 2010, six cities – Baltimore, Md.; Buffalo, N.Y.; Newark, N.J.; Philadelphia, Pa.; Seattle, Wash.; and San Francisco, Calif. – and three states – Massachusetts, Minnesota, and Rhode Island – have joined Hawaii, the first state to enact ban-the-box legislation. Many more jurisdictions restrict public employers from considering criminal history. Ban-the-box bills are pending across the country.

Although Baltimore city council members tout the new ordinance as the most progressive law banning the box in the U.S., the ordinance is closer to the middle of the pack. This may be a relief to employers because each ban-the-box law has tended to be tougher than the last. Prior to Baltimore’s ordinance, the most recent law enacted on the subject, San Francisco’s ordinance, arguably was the toughest ban-the-box law in the country. The complexity of the requirements in the San Francisco ordinance seems intended to discourage employers from asking about an applicant’s criminal record at all. By contrast, Baltimore’s ordinance imposes lesser hurdles to such questions.

In one respect, the Baltimore ordinance stands with the toughest ban-the-box laws. Like Hawaii and Newark, Baltimore forbids inquiries into criminal history before an employer makes a conditional offer of employment. Other jurisdictions allow the inquiry earlier in the hiring process. In Philadelphia, employers can ask about an applicant’s criminal history after the first interview. Buffalo, Minnesota, and Rhode Island allow the question at the first interview. Massachusetts and Seattle permit an inquiry into criminal history after the initial application.

Otherwise, Baltimore’s ordinance lacks the cumbersome procedural and substantive requirements included in many ban-the-box laws. Unlike some other ban-the-box laws, Baltimore’s does not require that employers provide any notices in addition to those required by the Fair Credit Reporting Act when an employer obtains criminal history information from a background check vendor. Baltimore’s law also does not impose any additional restrictions on the criminal history that an employer can consider when making an employment decision.

Baltimore’s law also applies to a narrow subset of employers. First, only employers with 10 or more full-time employees in the City of Baltimore are covered by the law. Consequently, even large employers need not comply if they have a small footprint within city limits. Second, the law has an exception for employers that serve children or adults who lack the physical or mental capacity to provide for their own daily needs. Many educational employers and healthcare providers, such as hospitals and nursing homes, may therefore continue their hiring practices without change. Third, the law carves out inquiries expressly authorized by another law. Employers in a number of industries are legally required to ask certain applicants about their criminal history. For example, under federal regulations, transportation companies must inquire in the employment application whether applicants for some driver positions have been convicted for driving under the influence of drugs or alcohol. These employers can continue to screen out such applicants at the initial stages of the hiring process instead of waiting until after the conditional offer of employment.

Employers that are covered by Baltimore’s ordinance should take care to comply, however. The ordinance has teeth. A violation is a misdemeanor with potential penalties of a $500 fine and 90 days’ imprisonment. In addition, the Baltimore Community Relations Commission may award a complainant back pay, reinstatement, attorneys’ fees, and compensatory damages, including damages for emotional distress and expenses incurred in seeking other employment.

Recommendations for Employers

To comply with the ordinance, which will go into effect Aug. 13, 2014, covered employers should consider taking the following steps:

*Determine whether the ordinance applies to their Baltimore operations.

*Review their employment application to remove questions about criminal history.

*Revise their hiring procedures to delay any inquiry about criminal history until after a conditional offer of employment has been made.

Philip L. Gordon and Zoe M. Argento are attorneys in Littler Mendelson’s Denver office. Republished with permission. © 2014 Littler Mendelson. All rights reserved.