Client Alert: Statewide Ban the Box is Back

Date: February 20, 2020

As you may recall, in May 2019, Governor Larry Hogan vetoed the statewide “Ban the Box” legislation that was enacted by the Maryland General Assembly during last year’s term. The law would have required Maryland employers with 15 or more full-time employees to refrain from asking applicants about their criminal record or any other criminal accusations against them before an in-person interview.

On January 30, 2020, the Maryland General Assembly overrode Governor Hogan’s veto regarding this legislation. As a result, covered Maryland employers need to quickly ramp up their compliance with this legislation, scheduled to take effect on February 29, 2020.

Who’s covered?

The new legislation applies to Maryland employers with 15 or more full-time employees. Keep in mind that the definition of employment is very broad under the new statute and is intended to include all types of employment including part-time, temporary, seasonal and others who may be employed through a temporary placement agency.

What does the new legislation require?

The statute prohibits an employer from inquiring about an applicant’s criminal background before the applicant is actually interviewed for the position. This means that covered employers can no longer have a section or “box” on their employment application requiring the applicant is to identify any prior criminal convictions and employers cannot ask that question in advance of the first in-person interview. During that interview, however, an employer is free to inquire about prior criminal convictions that may have a bearing on the position the applicant is seeking. Clearly, the intent that the legislation is to prohibit employers from simply reviewing an application and rejecting applicants on the basis of prior criminal convictions without first interviewing the applicant.

Other Key Aspects of the New Legislation

What constitutes a “criminal record” is very broad and includes guilty verdicts, pleas of nolo contendere, the marking of a charge as a “STET” on the docket and a probation before judgment disposition. Another interesting aspect of this new legislation is the fact that by its terms it does not pre-empt any other local laws that address this issue. Several local jurisdictions, including Baltimore City, Prince George’s County and Montgomery County have their own “ban the box” laws with which to comply, along with this new state statute.

The new legislation does include limited exceptions where an employer is required or authorized to seek such information by federal or state law or in those circumstances where the employer provides program services or care to minors or vulnerable adults. In those limited circumstances, a covered employer may require the disclosure of a criminal record on their application before an in-person interview.

For example, in Baltimore City, employers with 10 or more full-time employees are covered by the local ordinance which requires the employer to wait until after a conditional offer of employment is made before inquiring about the applicant’s criminal history. Similarly, in Montgomery County and Prince George’s County, covered employers must also wait until after the first interview to make inquiries as to the applicant’s criminal background.

Although not specifically addressed in this new legislation, employers should be mindful of the EEOC’s enforcement guidance on the use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.  In that guidance, the EEOC suggests that an employer may not rely solely on arrests in making hiring decisions. Any criminal convictions must be job related in order to be disqualifying. To that end, in evaluating an applicant’s prior criminal history, the employer should consider the nature and gravity of the offense, the amount of time that has passed since the offense was committed and the nature of the job held or sought. So, if someone is applying to be a maintenance worker in an apartment complex and would have access to the residential units, an employer would probably be concerned about any applicant who has had recent convictions for a crimes involving assault, sexual assaults and/or theft. A conviction involving personal use of marijuana from years ago, may not be useful in evaluating the applicant’s suitability for the position. 

What should Maryland employers do now to prepare for this new law?

First, covered Maryland employers need to make sure that their applications comply with the new legislation, i.e. that they do not request the applicant to disclose on the application whether he or she has a prior criminal conviction. Second, covered employers should develop a brief addendum to the application that would request such criminal background information. That form should then be used during the in-person interview to obtain that information or allow the employer to obtain it after the interview. Third, covered Maryland employers should now consider developing a process that tailors the analysis of an applicant’s criminal background with the position sought. To that end, employers should make an individualized assessment for each applicant, analyzing the nature and duties of the position applied for alongside any recent criminal convictions the applicant may have on his/her record.

For more information or questions regarding this issue, contact Kevin McCormick or another member of our Labor & Employment Practice