The “Ban the Box” ordinance passed by the Baltimore City Council (over the vehement protests of the City’s business community) on Monday, April 28 (“the Bill”) is expected to be signed into law by Mayor Stephanie Rawlings-Blake. The Bill will become effective 90 days after it is signed by the Mayor and will affect the hiring practices of many employers. If enacted, Baltimore City will join about 60 other localities nationwide with similar legislation.
The Bill applies to all employers with ten (10) or more full-time (or equivalent) employees in Baltimore. An employer is prohibited from asking about a job applicant’s criminal record or performing a criminal background check until after it makes a conditional job offer. As the Bill’s name suggests, the employer is banned from asking the applicant to check a box on an application form asking whether he or she has been convicted of any criminal offense. The Bill also prohibits discrimination or retaliation (e.g. refusing to hire an applicant because the applicant tells the employer that its question about his or her criminal record is illegal).
Once it has made a conditional offer to the applicant, the employer may explore the criminal record issue, including requiring the applicant to pass a criminal background check prior to being hired. If it learns of information during this time that raises concerns about the applicant’s fitness for the job, the employer should notify the applicant and give him or her a chance to respond accordingly. The employer is not required, however, to hire an applicant with a criminal record. In other words, this law pushes back the timing of when employers may consider an applicant’s criminal record; it does not forbid them from considering it at all.
There are notable exceptions to the Bill’s requirements. First, employers that provide services for children and/or special-needs adults are not affected. For example, child care centers may still ask whether an applicant has been convicted of sexual abuse. Second, inquiries that are already required by federal, state, and/or city law remain intact. Therefore, certain law enforcement officers and other jobs requiring State-issued licenses (among others) may still be subject to criminal background checks at the initial application stage. Additionally, if the applicant voluntarily brings up his or her criminal record without being asked, the employer may use this information when making hiring decisions.
Violations of the Bill carry potential significant penalties. Any person may file a complaint with the Baltimore Community Relations Commission. If successful, the Commission may award back pay, reinstatement, compensatory damages (including both “compensation for humiliation, embarrassment, and emotional distress,” and job search expenses), and attorney’s fees. Anyone who violates the Bill may also face criminal penalties of up to a $500 fine and 90 days in prison for each violation.
Employers who may be affected by the Bill should immediately review their hiring processes in order to ensure that the issue of an applicant’s criminal record is eliminated until the conditional offer stage.