“Ban the Box?” Am I Required to Hire Criminals?

“Ban the Box” laws, so called from the question (or box to be checked) on an employment application that asks an applicant about their criminal background, prohibit the use of a check-box on job applications indicating whether or not the applicant has a criminal record.

In 2014, Maryland lawmakers instituted legislation that encourages Maryland employers to “think outside the box.” Baltimore City, Montgomery County and Prince George’s County, respectively, passed ordinances affecting an employer’s ability to inquire into a job applicant’s criminal history.

Baltimore City:

Employers covered are those with 10 or more full-time employees. The ordinance prohibits inquiry into a job applicant’s conviction history until after a conditional offer of employment. Ironically, a “conditional offer” is defined as an offer that is conditioned solely on 1) the results of the employer’s subsequent inquiring into or gathering information about the applicant’s criminal record; or (2) some other contingency expressly communicated to the applicant at the time of the offer. The ordinance does not modify or waive any requirements and limitations of any Federal or State law on access to or the use of criminal records. Additionally, the ordinance does not apply to facilities servicing minors or vulnerable adults.

Employers should take note that any person aggrieved by an alleged violation of the ordinance may file a complaint with the Baltimore Community Relations Commission. The Commission may award: (1) back pay for lost wages caused by the violation; (2) reinstatement; (3) compensatory damages, which may include: (i) compensation for humiliation, embarrassment, and emotional distress; and (ii) expenses incurred in seeking other employment; and (4) reasonable attorney’s fees.

Any employer who violates the ordinance is guilty of a misdemeanor and, on conviction, is subject to a fine of not more than $500 or imprisonment for not more than 90 days or both fine and imprisonment for each offense.

Well, that leaves me with the question: is an employer required to disclose to an applicant that it was criminally charged for violating this ordinance?

Montgomery County:

The ordinance covers employers that have 15 or more full-time employees. Employers may not conduct an investigation of an applicant’s conviction history until after the conclusion of the first interview. Employers are permitted to ask follow-up questions about an applicant's criminal history voluntarily disclosed by the applicant and questions about the applicant's employment history shown on the applicant's resume. If the employer intends to rescind a conditional offer, the employer must notify the applicant of the intention to rescind the offer and state the items that are the basis for the intention to rescind the offer. The employer must provide the applicant with a copy of the background check, specify the disqualifying information and give the applicant seven days to review the information. An applicant who finds false information or mistaken identity in the report is provided an opportunity to respond with evidence proving the mistake within seven days. Applicants may file a complaint with the director of the human rights commission. Job applicant complainants are not provided with damage awards, however, a civil penalty of up to $1,000 is slapped onto an employer who violates the law. Exemptions are provided for employers hiring for a position that requires a federal government security clearance. The law also makes exceptions for any positions currently required by state or federal law to have completed background checks, like childcare workers, teachers, and those working with vulnerable populations. The ordinance went into effect on January 1, 2015.

Prince George’s County:

This ordinance applies to employers with 25 or more full-time employees in the County. Similar to Montgomery County, an employer is not permitted to inquire about a job applicant’s arrest or conviction record until after a first job interview. In making an employment decision based on a person’s record, employers are only allowed to consider offenses that specifically demonstrate unfitness for the desired position. If an employer decides to rescind an offer based on the applicant’s criminal record, the employer must notify the applicant of its decision, specify the information on which its decision is based and provide copy of the criminal background check to applicant.

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