Employment Law Update

What is "Ban the Box"?

On May 15, 2014, Mayor Stephanie Rawlings-Blake signed the "ban the box" law, which will prohibit most city employers from inquiring about an applicant's criminal background prior to making a conditional offer of employment. The law's name refers to the box commonly found on employment applications which applicants are asked to check to indicate whether they have prior criminal convictions. According to proponents of the legislation, the practice of asking about an applicant's criminal history on employment applications creates an "artificial barrier" that prevents otherwise qualified individuals from joining the workforce. Business leaders opposed the law arguing that it will increase the cost of the hiring process, introduce unnecessary delays, and possibly cause the loss of qualified candidates who are rejected or put on hold while a conditional offer is made to an applicant who is eventually rejected because of his/her criminal history.

A number of cities and states have "ban the box" or similar laws that apply to government employers, or private employers that do business with the government. However, only four other cities, Buffalo, Seattle, Philadelphia and Newark, Delaware, have anti-criminal background check laws that broadly apply to most private employers.

What Does the Law Prohibit?

Under Baltimore's law, covered employers will be prohibited, at any time before a conditional offer of employment has been extended, from:

• Requiring an applicant to disclose or reveal whether he or she has a criminal record, or otherwise has had a criminal accusation brought against him or her.
• Conducting a criminal record check on any applicant.
• Otherwise making any inquiry of the applicant or others about whether the applicant has a criminal record or otherwise has had criminal accusations brought against him or her.

Significantly, the broadly worded law applies not just to searches performed by third-party vendors hired to do background investigations, but also to any inquiry by the employer itself. For example, prior to determining whether to interview an applicant, some employers search the Maryland Judiciary Case Search website, a free site available to the general public, which lists most civil and criminal cases brought in Maryland's courts. Under the new law, covered employers will be prohibited from conducting such searches before a conditional offer of employment is made.

What is a "Conditional Offer"?

The law defines a "conditional offer" as an offer that "is conditioned solely on" either the results of a subsequent criminal history check, or "some other contingency expressly communicated to the applicant at the time of the offer." This definition is significant because it requires employers to set forth all contingencies upon which an offer of employment may be based at the time of the conditional offer. Accordingly, it will be important that other contingencies - such as passing a physical or other test, providing evidence of required licenses/certifications/degrees, and having satisfactory results from a credit and/or other background check - should be specified along with the requirement of a criminal history check.

Which Employers are Covered?

The law will apply to all employers who employ 10 or more full-time equivalent employees in the City of Baltimore.

Employers Exempted from the Law

The Baltimore law does not apply to any inquiry about an applicant's criminal background that is required or expressly authorized by some other applicable federal, state, or city law or regulation. Covered employers should verify whether there is any such law which will permit them to make the inquiries otherwise prohibited by the new "ban the box" law.

The law also does not apply to any employer who provides programs, services or direct care to minors or vulnerable adults. Under the law, a "vulnerable adult" is any adult who lacks the physical or mental capacity to provide for his or her own daily needs.

What Remedies Does the Law Provide Applicants?

Applicants who believe they have been harmed by an alleged violation of the law may file a complaint with the Baltimore City Community Relations Commission. The Commission is charged with enforcing the law and is authorized to investigate complaints in the same manner it investigates discrimination claims. The law provides that if the Commission determines that a violation has occurred, it may award damages, including back pay, compensatory damages and reasonable attorneys' fees and/or require the hiring of an individual. Compensatory damages may include such items as compensation for humiliation, embarrassment and emotional distress, as well as expenses incurred in seeking other employment. Employers may appeal adverse decisions by the Commission to the Circuit Court for Baltimore City.

There are Criminal Penalties for Violating the Law

Violating the law also carries with it criminal penalties. "Any person" who violates the law is guilty of a misdemeanor and may be subject to a fine of up to $500, imprisonment for not more than 90 days, or both, for each offense. Significantly, the law defines the term "person" as including individuals, as well as corporations and other entities. Accordingly, it is possible that individuals involved in the hiring process will be subject to a criminal prosecution if they take an action that violates the law.

Other Dangers Lurking for Employers in the New Law

Applicants previously might not have known why they were not selected for an interview. Under the new law, applicants will go through the entire interview process and, if their offer is revoked, know that it is likely that their criminal history was the basis for the employer's decision. It seems likely that having an offer revoked, as opposed to simply not getting an interview, will result in more discrimination charges being filed.

The U.S. Equal Employment Opportunity Commission (EEOC) has criticized the practice of basing hiring decisions on an applicant's criminal history. In April 2012, the EEOC published an Enforcement Guidance on the use of criminal background checks in employment. The Guidance does not bar employers from using criminal background checks in hiring, but notes that automatically disqualifying applicants or employees who have a criminal history from hiring/promotion may have a discriminatory disparate impact on members of certain minority groups under Title VII of the Civil Rights Act, because members of such minority groups have been disproportionately subjected to arrest and conviction compared with the general population. The Guidance calls for employers to conduct individualized assessments of individuals who will be excluded by a criminal background screen to determine whether excluding the applicant/employee is "job related and consistent with business necessity".

When Does the Law Take Effect?

The law will take effect on August 13, 2014, the 90th day after it was signed by the Mayor.

What Steps Should Covered Employers Take to Prepare for the New Law?

Covered employers need to review their employment policies and applications. Policies that forbid or restrict consideration of applicants with criminal records must be modified to apply only after a conditional offer has been made. Most importantly, applications (written and electronic) will have to be modified to eliminate questions about criminal backgrounds. In addition, covered employers must also ensure that personnel involved in the hiring process are aware of the restrictions imposed by the new law, which prohibits any inquiry concerning an applicant's criminal background before a conditional offer is made. Accordingly, HR staff and individuals involved in the application/interview process should be trained about the new law's restrictions.

Can Covered Employers Still Make Inquires About and Decisions Based On an Applicant's Criminal Background?

The law only prohibits covered employers from making inquiries about an applicant's criminal background before a conditional offer of employment is made. An offer may be made conditioned upon the employer's subsequent inquiry into the applicant's criminal record. Prudent employers will make such conditional offers in writing, specifying all conditions that must be satisfied prior to employment. After a conditional offer is made, an employer can require the employee to list and explain prior convictions, other criminal charge dispositions such as nolo contendere and probation before judgment, and pending criminal charges. Employers may still reject an applicant if, after making a conditional offer of employment, the employer determines that the applicant's criminal background makes the applicant unacceptable for the position; or if the employer later determines that the applicant misrepresented his or her criminal record in any information provided to the employer after the applicant received the conditional offer.

If you have any questions about how Baltimore City's "ban the box" law applies to your workplace, or if you want to discuss revising your application form and/or hiring practices, please contact Chuck Bacharach, or Bob Kellner.