Maryland Enacts Statewide 'Ban-the-Box' Law

During the 2019 legislative session, Gov. Larry Hogan vetoed the Criminal Records Screening (or "ban-the-box") Act. On Jan. 30, however, the Maryland General Assembly overrode the governor's veto, making it unlawful for any employer in the state of Maryland with 15 or more employees to inquire into an applicant's criminal history before the employer conducts its first in-person interview.  

The law takes effect on Feb. 29.  Importantly, the law does not pre-empt the more restrictive ban-the-box ordinances enacted in Montgomery County, Prince George's County, and Baltimore City.

Questions and Answers

Must all employers, regardless of size, comply with the new law? No. The law applies to employers with 15 or more full-time employees. The statutory language does not further define employer coverage.

What is an employer restricted from doing? The law prohibits employers from asking applicants before the first in-person interview whether they have a criminal record or have been accused of a crime. The employer, however, may require the applicant to disclose such information during the first in-person interview.  In other words, an employer may no longer inquire about an applicant's criminal history on a job application or during a phone interview. The law defines "criminal record" to mean an arrest, a guilty plea or verdict, a nolo contendere plea; a disposition of probation before judgment, a disposition of "not criminally responsible," or a marking of a charge "stet" on the docket. The law does not define what it means for an applicant to have been accused of a crime.   

Are there any exceptions? Yes. An employer may inquire about criminal history at any time if another federal or state law requires or authorizes the employer to inquire into an applicant's criminal history, or the employer provides services or care to minors or vulnerable adults.

Are there penalties for noncompliance or retaliation? Yes. The law prohibits employers from discriminating or retaliating against an applicant or employee for claiming the employer violated the statute. The law allows aggrieved individuals to submit written complaints to the Maryland Commissioner of Labor and Industry. If the commissioner finds that an employer violated the statute, the Commissioner will issue an order compelling compliance, and may assess a civil penalty of up to $300 per applicant should the employer subsequently violate the statute.

What are the more restrictive requirements in the local ban-the-box ordinances? Like Maryland's law, Montgomery County's ordinance applies to employers with 15 or more employees. Baltimore's ordinance, in contrast, applies to employers with 10 or more employees. Prince George's County's ordinance applies to employers with 25 or more employees.

The ordinances in Montgomery County and Prince George's County allow criminal history inquiries only after the first interview. This is more restrictive because the statewide law permits an employer to inquire about criminal history during the first interview. 

Baltimore's ordinance is the most restrictive because it prohibits an employer from inquiring into an applicant's criminal history until after the employer makes a conditional offer of employment to the applicant.

Another difference between Maryland's ban-the-box law and the local ordinances relates to notice requirements to applicants. For those employers in Montgomery County and Prince George's County, the ordinances require employers to provide pre- and final adverse action notices to applicants when the employer intends to withdraw a conditional offer of employment based on the applicant's criminal history. Baltimore's ordinance, like Maryland's law, contains no pre- or final adverse action notice requirement.

Are there any other related laws to consider? Yes. The Equal Employment Opportunity Commission has issued enforcement guidance relating to an employer's use of an individual's criminal history in making employment decisions. In sum, in assessing whether an employer has violated Title VII of the Civil Rights Act of 1964, the commission considers whether the inquiry is job related for the position in question and consistent with business necessity.

Moreover, if an employer conducts a background credit check, it must comply with both the: (1) federal Fair Credit Reporting Act requirements, including the FCRA's initial notice, authorization, pre-adverse action and adverse action notice requirements; and (2) Maryland's Job Applicant Fairness Act.

Next Steps for Maryland Employers

Maryland employers should remove questions about criminal history from their job applications and revise their hiring procedures to delay any inquiry about criminal history until the first in-person interview. If the employer is located in Montgomery County, Prince George's County or Baltimore City, however, the employer must provide locally required notices and delay criminal history inquiries as discussed above.

Steven Kaplan and Emily Carapella are attorneys with Littler in Washington, D.C. © 2020 Littler. All rights reserved. Reposted with permission.