Employment Law Update

The Maryland General Assembly passed “ban the box” legislation during its 2019 session prohibiting employers from requiring job applicants to disclose whether they have a criminal record or have had criminal accusations brought against them, prior to the first in-person interview.

Although Governor Lawrence Hogan, Jr. vetoed this measure on May 24, 2019, citing the potential costs and delays imposed on employers, the General Assembly overrode the veto on January 30, 2020.

The new law will go into effect February 29, 2020.

Maryland has joined a growing number of states and local governments enacting ban the box legislation for private employers. Proponents of these measures hope to assist applicants who have a criminal history to successfully reintegrate into the workforce.

What Does the Law Prohibit?

Covered employers are prohibited, at any time before the first in-person interview, from requiring an applicant to disclose whether they have a criminal record or have had criminal accusations brought against them. However, covered employers may require an applicant to disclose whether they have a criminal record or have had criminal accusations brought against them during or after the first in-person interview.

Which Employers Are Covered?

The law applies to all employers who employ 15 or more full-time employees.

What Is a Criminal Record?

Under the new law, a criminal record is defined as:

1. An arrest,
2. A plea or verdict of guilt,
3. A plea of nolo contendere,
4. The marking of a charge “STET” on the docket,
5. A disposition of probation before judgment, or
6. A disposition of not criminally responsible.

Which Employers Are Exempt?

The measure does not apply to employers that are expressly authorized to conduct background checks under federal or state laws or if the employers provide programs, services or direct care to minors or to vulnerable adults.

What Is the Status of Current County Ban the Box Laws?

The law specifically allows local jurisdictions to continue to enforce or enact measures that are more restrictive with respect to employers’ criminal records screening practices in the local jurisdictions.

Currently Baltimore City, Montgomery County and Prince George’s County have more restrictive local ban the box statutes. Local prohibitions, which will still be in force, are as follows:

What Are Applicants’ Remedies?

Applicants who believe they have been harmed by an alleged violation of the law may file a written complaint with the Commissioner of Labor and Industry. The Commissioner may issue an order compelling compliance and assess a civil penalty of up to $300 for each adversely affected applicant or employee.

Additionally, an employer cannot retaliate or discriminate against any applicant or employee as a reprisal for claiming a violation of this statute.

What Steps Should Employers Take?

While employers in Baltimore City, Montgomery County and Prince George’s County are already required to comply with local ban the box laws, all Maryland employers now need to review their employment policies and applications. Covered employers should modify their policies that forbid or restrict consideration of applications with criminal records to apply only after the first in-person interview has begun. Most significantly, covered employers must review and modify their applications to eliminate questions about criminal backgrounds. Covered employers should inform personnel involved in the hiring process of these new restrictions. Finally, employers in Baltimore City, Montgomery County and Prince George’s County should ensure they are following both the state and local laws.

If you're interested in learning about how to comply with this new law, contact Charles R. Bacharach.

Charles R. Bacharach
410-576-4169  • cbacharach@gfrlaw.com