Many people like to use the cliché “think outside the box.” In most instances the phrase is used to encourage someone to be creative and look for ideas outside of what is common or the norm. New laws in three localities in Maryland and in the District of Columbia are not simply encouraging employers to think outside the box, but requiring them to “Ban the Box” entirely. The penalties for failure to do so are significant.
These laws have been termed “Ban the Box” legislation because, in addition to other provisions, the new laws ban employers from having a box that requires applicants to check yes or no regarding whether they have ever been arrested or convicted of a crime.
Prior to 2014 neither Washington, D.C. nor any jurisdiction in Maryland had laws regarding an employer’s use of criminal background records. However, in 2014 Baltimore City, Prince George’s County, Montgomery County and Washington, D.C. all enacted laws that restrict an employer’s ability to conduct criminal background checks on job applicants or otherwise inquire into an applicant’s criminal record until after a specific point in the hiring process.
The Same Tree Multiple Branches – Where they differ:
While each of the ban the box laws restricts an employer’s ability to inquire into an applicant’s criminal background, the laws differ with respect to when they were enacted, which employers are covered, when the employer may inquire, who is responsible for enforcement, and what the consequences are for violating the laws.
- Baltimore City’s “Ban the Box” –Fair Criminal-Record Screening Practices Bill
- August 13, 2014
- Washington, D.C.’s Fair Criminal Screening Amendment Act of 2014
- December 11, 2014
- Montgomery County Council Fair Criminal Record Screening Standards Act
- January 1, 2015
- Prince George’s County Fair Criminal Record Screening Standards Act
- January 20, 2015
Who is an Employer?
In Baltimore City “covered employer” is defined as “any person that employs 10 or more full-time equivalent employees in the city of Baltimore.” The bill specifically states that contractual, temporary, and seasonal work, as well as employment procured through the services of an agency, are included in the definition of “employment.” Government entities are not considered to be covered employers.
Conversely in Washington, D.C. an employer is anyone who employs more than 10 employees in the District of Columbia. Note that the employee is not classified as either a part-time or full time. Additionally, the term employer includes the District government, but does not include the Courts.
In Montgomery County an employer is anyone operating and doing business in the County and employing 15 or more full-time persons in the County. However, in Prince George’s County an employer is anyone operating and doing business in the County and employing 25 or more full-time persons in the County. Under both laws, the term employer includes the County government, but not the United States, any State or any other local government.
When to Inquire?
In Baltimore City a covered employer may not, at any time before a conditional offer of employment has been extended: 1) require the applicant to disclose or reveal whether he or she has a criminal record or otherwise has had criminal accusations brought against her or him; 2) conduct a criminal-record check on the applicant; or 3) otherwise make any inquiry of the applicant or others about whether the applicant has a criminal record or otherwise has had criminal accusations brought against her or him. A “conditional offer” is defined as a job offer that is conditioned solely upon the results of the employer’s subsequent inquiry into the applicant’s criminal record, or on some other contingency that was expressly communicated to the applicant at the time of the offer.
In Washington, D.C., an employer may not, at any time before a conditional offer of employment has been extended: 1) inquire about or require an applicant to disclose or reveal any arrest or criminal accusation made against the applicant, which is not then pending against the applicant and which did not result in a conviction or 2) inquire about or require an applicant to disclose or reveal any criminal conviction.
In both Montgomery County and Prince George’s County, an employer may not, at any time before the conclusion of a first interview: 1) require an applicant to disclose whether the applicant has an arrest record or conviction record, or otherwise been accused of a crime; 2) conduct a criminal record check on the applicant; or 3) inquire of the applicant or others about whether the applicant has an arrest or conviction record or otherwise been accused of a crime.
How to Withdraw an Offer
Baltimore City’s Ban the Box law does not specify how an employer should withdraw a conditional offer. The other jurisdictions, however, have a clear process for withdrawing or rescinding an offer.
In Washington, D.C. an employer may withdraw a conditional offer or take adverse action against the applicant only for a legitimate business reason. The law details seven factors to consider when determining what is a legitimate business reason. Once a conditional offer has been withdrawn an applicant can request that the employer within 30 days provide the applicant with 1) a copy of all the records, including criminal records, the employer gathered when considering the applicant and 2) a written statement of Denial which states the legitimate business reason, demonstrates consideration of all seven factors mentioned above, and advises the applicant of his or her opportunity to file an administrative complaint with the Office of Human Rights.
In both Montgomery County and Prince George’s County, if an employer decides to rescind a conditional offer based upon a criminal record then the employer must: 1) provide the applicant with a copy of any criminal record report; 2) notify the applicant both of the intention to rescind the conditional offer and the items that are the basis for the intention to rescind the conditional offer; and 3) delay rescinding the conditional offer for 7 days to permit the applicant to give the employer notice of inaccuracy of an item(s) on which the intention to rescind the conditional offer is based. Notification to the applicant of the rescission of the conditional offer must be in writing.
The following circumstances make the respective “Ban the Box” laws inapplicable:
- Employers who provide programs, services, or direct care to minors, or to vulnerable adults.
- Jurisdictions: Baltimore City, Montgomery County and Prince George’s County
- Criminal inquiry is explicitly authorized or required by law or regulation (whether federal, state, or local)
- Jurisdictions: Baltimore City, Washington, D.C., Montgomery County and Prince George’s County
- Employer has positions designated as a part of a district or federal program designed to employ people with criminal histories.
- Jurisdiction: Washington, D.C.
- Employers that are hiring for a position that requires a federal government security clearance
- Jurisdiction: Montgomery County
- County public safety agencies or positions that have access to confidential or proprietary business or personal information, money or items of value, or involve emergency management
- Jurisdiction: Prince George’s County
In Baltimore City monetary damages may be awarded. Such awards can include back pay, expenses (including attorney’s fees), and compensatory damages, including damages for “humiliation, embarrassment, and emotional distress.” There are also criminal penalties, which can include fines of up to $500 and jail terms of up to 90 days.
Violation of the Washington, D.C. law will result in a fine, the amount of which varies depending on the number of persons an employer employs. Damages such as compensation for financial losses, equitable relief and consequential damages are available in Montgomery County. There are also civil penalties which can include fines of up to $1,000.00 for each violation. Prince George’s County Ban the Box law does not have any provisions regarding damages or penalties. However, provisions regarding damages and penalties may be provided in the rules and regulations that are to be promulgated sixty days from January 20, 2015.
Are there more on the way?
In 2014 five ban the box bills were passed in the DC, Maryland, and Northern Virginia areas. Many employers are waiting to see whether this recent trend will move into other Maryland jurisdictions. Employers operating in the affected jurisdictions need to become familiar with the new local standards and adjust their hiring practices to avoid exposure to this new form of employment law liability. As always, any employer or party seeking assistance in complying with these laws is invited to contact Ferguson, Schetelich & Ballew, P.A. at 410-837-2200.