“Ban The Box” Continues To Catch On In Maryland

Kollman & Saucier
Kollman & Saucier

Montgomery and Prince George’s Counties join Baltimore City (and the District of Columbia) to now limit an employer’s ability to inquire about an applicant’s criminal history.  This trend continues to grow, and very likely, will become Maryland state law sooner than later.

Montgomery County Ordinance

Effective January 1, 2015, most private employers with 15 or more full-time employees and that do business in Montgomery County may not inquire about an applicant’s criminal history (arrest or conviction record) or conduct a background check, as those terms are defined by the ordinance, until after a first interview has concluded (this includes potentially new employees and current employees seeking a promotion).  The ordinance defines an interview as direct contact between the employer and applicant to discuss the employment being sought or the applicant’s qualifications, which can occur in person, by telephone or by internet communication.  An “interview” does not include communications made for scheduling purposes.

An employer is permitted to ask follow up questions if the applicant voluntarily discloses criminal record information.  An employer may ask questions regarding an applicant’s employment history based on the applicant’s resume and/or application.  Finally, the ordinance permits an employer to ask questions or take otherwise prohibited actions if they are authorized by other federal, state or local law (meaning the other law trumps).

If an employer will disqualify an applicant based on a criminal background check information that occurs after the first interview, the employer must comply with the Fair Credit Reporting Act (FCRA), and integrate the following additional process before taking adverse action:  provide the applicant/employee with a copy of any criminal report; notify the applicant/employee of the prospective adverse action and the items from the report that are the basis for the decision; and delay rescinding an offer for seven (7) days so the applicant/employee has the opportunity to provide notice of inaccurate items that were relied upon by the employer.  Any employer who takes an adverse action against an applicant/employee based on his or her criminal record must provide written notice of that decision to the individual.

Not surprisingly, the ordinance contains strong anti-retaliation language and permits any person aggrieved by an employer under the ordinance to file a complaint with the Montgomery County Office of Human Rights.

Prince George’s County Ordinance

This law becomes effective January 20, 2015, and prohibits most private employers with 25 or more full-time employees in Prince George’s County from asking, prior to the conclusion of a first interview, if an applicant has an arrest or conviction history or performing a criminal history check on the individual.   An employer may make inquiries or take adverse action if expressly authorized by other federal, state or local law.  As with the Montgomery County Ordinance, there are procedural requirements for an employer who seeks to disqualify an applicant.  An employer must: provide the applicant with a copy of any criminal report; notify the applicant of any items that are the basis for the intended rescission; and provide the applicant seven (7) days to provide notice of inaccuracy of the items supporting the rescission decision.

Further, before denying employment, the employer is required to perform an individualized assessment considering only specific offenses that are related to the position, the time since the offense occurred, and any evidence that the record may be inaccurate.  Any notice to rescind an offer of employment must be made in writing and given to the applicant.  The ordinance contains anti-retaliation provisions identical to Montgomery County and any complaints for violations can be filed with the County’s Human Relations Commission.  The Executive Director of the PGCHRC will promulgate rules and regulations implementing the new ordinance within 60 days of its effective date.

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