Maryland General Assembly Overrides Governor’s Veto and Restores Ban-the-Box Law

Seyfarth Synopsis: On January 30, 2020, the Maryland General Assembly voted to override Governor Larry Hogan’s May 2019 veto of the Act Concerning Record Screening Practices (Ban the Box) (the “Act”).  As a result, effective immediately, Maryland employers with 15 or more full-time employees are precluded from requiring applicants to disclose their criminal record or any criminal accusations against them before a first in-person interview.

Coverage

As noted, the Act applies to employers with 15 or more full-time employees. “Employment” is broadly defined to mean “any work for pay and any form of vocational or educational training, with or without pay.” The term broadly covers virtually all types of employment, including contractual, temporary, seasonal, and contingent workers and those employed through the services of a temporary or other type of employment agency. 

Prohibitions

Covered employers may no longer require an applicant to disclose whether he or she has a criminal record or has had criminal accusations brought against the applicant before a first in-person interview. The employer may, however, require these disclosures during that interview. The Act also makes it unlawful for an employer to discriminate or retaliate against any applicant or employee claiming a violation of the new law.

The Act defines “criminal records” broadly to mean “an arrest; a plea or verdict of guilty; a plea of nolo contendere; the marking of a charge of ‘stet’ on the docket; a disposition of probation before judgment; or a disposition of not criminally responsible.”

Exemptions

Employers that provide programs, services or direct care to minors or to vulnerable adults or are required or authorized by federal or state law to make otherwise prohibited inquiries are exempt from the Act. 

Preemption

The Act does not preempt any local jurisdiction from enacting or enforcing any law that is more restrictive with respect to a local employer’s criminal history screening practices.  This is important because currently three local Maryland jurisdictions have ban-the box laws, all of which go beyond Maryland’s state law requirements: Baltimore, Montgomery County, and Prince George’s County.

For instance, in Baltimore, employers with 10 or more full-time employees must wait until after a conditional offer to inquire about criminal history. And, in Montgomery County and Prince George’s County, covered employers must wait until after the first interview to make these inquiries. Thus, while the state law is more favorable in that it allows employers to make the inquiry during an interview, employers that operate in Baltimore, Montgomery County and Prince George’s County must defer inquiry to later in the hiring process.

Moreover, both Montgomery County and Prince George’s County require that an employer’s pre-adverse action notice include additional information (including identification of the criminal record at issue) beyond what the federal Fair Credit Reporting Act, 15 U.S.C. §  1681 et. seq, requires in such notices. Finally, both of these counties specifically mandate that employers conduct an individualized assessment of a criminal record to determine job-relatedness before taking action based on the record.

Enforcement

The Maryland Commissioner of Labor and Industry (“the Commissioner”) is responsible for determining whether an employer has violated any provision of the Act and may issue orders compelling compliance.  For any subsequent violations, the Commission, in its discretion, may assess a civil penalty up to $300 for each aggrieved applicant or employee. In determining the amount of any civil penalty assessed against the employer, the Commissioner will consider:  the gravity of the violation; the size of the employer’s business; the employer’s good faith; and the employer’s history of violations.

Recommendations for Maryland Employers

To comply with all ban-the-box laws in Maryland, covered employers hiring for positions located in Maryland should consider:

• Revising their employment applications and job postings to remove any inquiry about criminal history or statement that criminal history will addressed.
• Modifying their hiring practices to delay any inquiry about criminal history until the appropriate time period, as applicable. Nationwide employers should consider deferring any inquiry until after a conditional offer in all jurisdictions.
• Creating a stand-alone criminal history question to present to applicants/candidates at the appropriate time, which requests appropriate self-disclosure of criminal history.
• Before rejecting an applicant because of criminal history for applicants in Montgomery County and Prince George's County, conducting an individualized, job-related assessment. Of course, employers in all jurisdictions also should be mindful of the Equal Employment Opportunity Commission’s 2012 Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, which provides a roadmap for conducting such an assessment.
• In Prince George's County and Montgomery County, modify pre-adverse action notices to specifically identify the criminal history that is potentially disqualifying.

Employers in all jurisdictions should continue to monitor the “ban the box” trend that has swept the nation and engage with knowledgeable counsel for questions in this area.