The phrase "ban the box" refers to banning any question on an employment application requiring an applicant to indicate that they have prior criminal history.
On January 30, 2020, the Maryland General Assembly voted to override Governor Larry Hogan's veto of the Criminal Record Screening Practices Act, widely known as the "ban the box" law. As a result, employers must be prepared to comply with the law when it takes effect on February 29, 2020.
What Is the Ban the Box Law?
The act establishes a statewide ban the box law prohibiting certain employers in Maryland from requiring a job applicant to disclose information related to their criminal record, with limited exception, prior to an in-person interview.
The phrase "ban the box" refers to banning any question on an employment application requiring an applicant to indicate that they have prior criminal history. Often these questions prompt an applicant to check a box to indicate their response. Beyond prohibiting such questions, the law prohibits employers from taking, or refusing to take, personnel actions, retaliation or discrimination as a reprisal against an applicant or employee who claims the employer violated the law.
While referred to as the ban the box law, the prohibitions are not limited to employment applications. The act is equally applicable to an employer's interactions with an applicant prior to an in-person interview including emails, surveys, phone calls or similar inquiries. Employers should educate their staff to ensure that those who are involved in screening applicants prior to an in-person interview avoid questions that would require an applicant to disclose a criminal record.
Employers should note the plain language of the act only prohibits employers from requiring an applicant to disclose their criminal record prior to an in-person interview. This is a change from earlier versions of the bill that prohibited employers from conducting inquiries into an applicant's criminal record. Those provisions were ultimately struck from the final bill. As it stands, the act does not prohibit an employer from running background checks or public record searches on applicants prior to in-person interviews. Additionally, the act specifically permits employers to require an applicant to disclose any criminal record during the first in-person interview. Maryland employers, however, should remain cautious and be aware that local laws may be more restrictive than the state law.
Definitions and Applicability
"Employer" is defined as any person (or business) who employees 15 or more full-time employees. The definition also includes any person who acts in the interest of an employer. As written, this definition may create personal liability for individuals who are involved in selecting, screening or interviewing applicants if they were to violate the act.
"Employment" is broadly defined as "any work for pay and any form of vocational or educational training, with or without pay." Employers should be aware that this definition could apply to internships, fellowships, apprenticeships and similar training programs. Additionally, the definition includes any "contractual, temporary, seasonal or contingent work," as well as services which are provided through a temporary or other employment agency.
"Criminal record" includes:
- an arrest;
- a plea or verdict of guilty;
- a plea of nolo contendere/no contest;
- the marking of a charge as stet on the docket;
- a disposition of probation before judgment; or
- a disposition of not criminally responsible.
Actions Not Prohibited by the Act
The act does not prohibit employers "from making an inquiry or taking other action that the employer is required to take or is expressly authorized to take by another applicable Federal or State law." Additionally, employers "that provide programs, services, or direct care to minors or to vulnerable adults" are not covered under the act.
Enforcement and Penalties
Under the act, the state Division of Labor and Industry, on its own initiative or in response to a complaint, is authorized to investigate and determine if any violations have occurred. The commissioner has the power to compel an offending employer to comply with the act. Additionally, after finding a subsequent violation of the act, the commissioner may levy a fine of up to $300 per applicant or employee who was affected by the violation.
The commissioner is required to consider the following factors when assessing civil penalties for violations of the act: "(1) the gravity of the violation; (2) the size of the employer's business; (3) the employer's good faith; and (4) the employer's [prior] history of violations."
Employers in Baltimore City, Montgomery County and Prince George's County
The act contains a no preemption clause, meaning it does not supersede the local laws already in place in Baltimore City, Prince George's County and Montgomery County. These laws are more restrictive than the state act in several areas. For example:
- Baltimore City prohibits employers from requiring an applicant to disclose a criminal record, conducting a background check or otherwise inquiring about an applicant's criminal record until after a "conditional offer" is made.
- Prince George's and Montgomery counties prohibit employers from conducting a criminal background check or otherwise inquiring into an applicant's criminal record before the conclusion of the "first interview."
The above is only a brief excerpt of each local law. Employers in these localities are encouraged to review their jurisdiction's law to ensure compliance with both the state and local laws.
Next Steps for Employers
Employers should review applications, screening materials and websites to ensure that any questions directed to an applicant concerning his or her criminal record are removed prior to February 29, 2020. Additionally, if an employer uses the service of temporary or contractual agencies, it should communicate with the agencies to ensure they are also in compliance with the act. Finally, employers should train employees who are involved in the interview or selection of applicants to ensure they comply with the act.
Employers should also pay regard to the Equal Employment Opportunity Commission's guidelines on "Consideration of Arrest and Conviction Records in Employment Decisions" when adopting a process to comply with the act. The EEOC's guidance requires employers to take precautions to avoid disparate treatment discrimination when considering criminal records in the hiring process.
To do so, the EEOC's guidelines suggest that employers conduct an individual assessment on each applicant when considering criminal backgrounds. Employers should decide whether an offence is job related for the position in question and consistent with business necessity by considering the following factors:
- the nature and gravity of the offense or conduct;
- the time that has passed since the offense or conduct and/or completion of the sentence; and
- the nature of the job held or sought. 1
1 EEOC Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, No. 915.002 (Apr. 25, 2012).
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.