Montgomery County, Maryland has amended the county’s ban-the-box legislation to increase restrictions on employers during the hiring process. The current law prohibits employers with fifteen (15) full-time employees in Montgomery County from conducting a criminal background check or otherwise seeking information on an applicant’s criminal or arrest background before the completion of the first interview.
The Amendment, which becomes effective February 19, 2021, expands the restrictions on employers and broadens the scope of covered employers. Employers (including the Montgomery County government) with at least one (1) employee (part-time is sufficient) in Montgomery County are covered. Such employers may not ask a job applicant or others to disclose whether the applicant has an arrest record, conviction record, been accused of a crime, or conduct any manner of criminal records check until after a conditional offer of employment has been made, unless the employer is covered by an applicable exemption set forth in the law (i.e., required by federal or state law to do so; employee will be working with minors or vulnerable adults).
Further, an employer may never (at no time during the employment relationship) require an applicant/employee to disclose if the individual:
- has been arrested, or has an arrest record for a matter that did not result in a conviction;
- has an arrest or conviction record, or has been accused of
- a first conviction for trespassing, disturbing the peace, or assault in the second degree;
- the date of conviction or any period of incarceration for a conviction at least three years old of a misdemeanor;
- a matter for which records are confidential under Section 3-8A-27 of the Courts and Judicial Proceedings Article of the Maryland Code or have been expunged under Sections 10-101-10-110 of the Criminal Procedure Article of the Maryland Code.
Notably, the Amendment does not prevent employers from discussing with an applicant his or her criminal background if the information is voluntarily disclosed by the applicant and not in response to any question or attempt to seek the information by the employer.
The Montgomery County Executive Director is authorized to enforce the Amendment and is required to adopt regulations to inform employees and employers of their rights and responsibilities under the new law. Those regulations have not yet been published.