CLIENT ADVISORY
CRIMINAL RECORD SCREENING PRACTICES (BAN THE BOX)
2020 Maryland Laws Ch. 3 (S.B. 839 (2019))
Many jurisdictions have enacted so-called “ban the box” legislation, which generally prohibits employers from requesting information regarding criminal background on employment applications. The theory behind this legislation is that it will allow greater numbers of individuals to obtain a “second chance” at employment.
Similar legislation was introduced in Maryland which would prohibit employers from, at least in most cases, inquiring about an applicant's criminal background. Despite the passage of the legislation, it was vetoed by Governor Larry Hogan on May 24, 2019.
On January 30, 2020, the Maryland Legislature overrode the Governor's veto. Accordingly, Maryland employers of 15 or more employees are now subject to this new “ban the box” legislation. Specifically, Maryland employers may not – prior to the first “in person interview” – inquire as to an applicant's criminal background history. This prohibition will effectively eliminate the ability of employers to ask on an employment application “have you ever been convicted of a crime?”
While the law will require employers to revise their employment applications, the law may have little to no impact in hiring: employers are still free to inquire about criminal background history at the first “in person interview.” (Apparently, you cannot ask about in an initial telephone interview). Exceptions exist where the employer is required or specifically permitted by law to ask applicants about criminal background history, or where an employer “provides programs, services, or direct care to minors or to vulnerable adults.” Failure to comply with the law may result in $300.00 for each application violation. Employers will not be forced to hire a candidate who was required to complete an illegal application, but there are provisions prohibiting retaliation/reprisal against applicants and employees who file a complaint with the Maryland Department of Labor, Licensing and Regulation, who will enforce the new law.
Notably, the new legislation does not prohibit employers from forewarning applicants that their criminal background will be subject to examination during the interview process.
This legislation is effective February 29, 2020. In light of this new legislation, this is a good time to review your employment applications and hiring process. Many laws, including the Federal Fair Credit Reporting Act, may unexpectedly apply to your hiring practices. We draft custom employment applications and are available to assist you in maintaining legal compliance at all points during the employment relationship.