On November 10, 2014, the County Executive of Montgomery County, Maryland, Isiah Leggett, signed county-wide ban-the-box legislation passed by the County Council on October 28, 2014 (Bill No. 36-14) (“Act”). The Act amends the County’s Human Rights and Civil Liberties Act by adding a new article titled the “Fair Criminal Record Screening Standards Act.” The Act bars most private employers in Montgomery County, as well as the County government itself, from inquiring about criminal arrests or convictions before the conclusion of a first interview. This prohibition applies to both applicants for initial hire and promotions of current active employees. The Act also places procedural restrictions on the use of arrest and conviction records to rescind conditional offers of employment or promotion. The Act goes into effect on January 1, 2015.
Prohibited and Permissible Inquires and Actions
The Act “bans the box” on applications, meaning that it prohibits employers from requiring an applicant or potential applicant to disclose on an employment application the existence or details of his or her arrest or conviction record. Under the Act, an “applicant” is any person who is considered, or requests to be considered, for employment in the county, including a current employee who requests to be considered for a promotion. Prior to the conclusion of a first interview, employers are prohibited from requiring any criminal background disclosure, conducting a criminal record check, or inquiring of the applicant or others about whether the applicant has an arrest or conviction record or otherwise has been accused of a crime. An “interview” under the Act means any direct contact (whether in person, by telephone, or by Internet communication) to discuss the employment being sought or the applicant’s qualifications but does not include written correspondence or email, or direct contact to schedule a discussion.
While an employer may not try to gather (directly or indirectly) criminal background information, the employer may ask questions about an applicant’s criminal or arrest record when the applicant voluntarily discloses its existence. An employer also may ask questions about an applicant’s employment history shown on his or her application or resume.
After the conclusion of the first interview, the Act permits employers to inquire about an applicant’s criminal arrest or conviction records. However, if an employer makes a conditional offer, and then intends to rescind the offer based on the applicant’s arrest or conviction record, the employer will be subject to certain additional notice and other requirements, similar to those currently required under the federal Fair Credit Reporting Act. Specifically, prior to rescinding the offer, the employer must first:
- provide the applicant with a copy of any criminal record report that formed the basis of the decision to take the adverse action;
- notify the applicant of the employer’s intention to rescind the offer, and identify the items on the criminal record report that form the basis for its intention; and
- delay rescinding the offer for seven days to permit the applicant to give the employer notice of inaccuracy of the item(s) on which the intention to rescind is based.
If, at the end of the seven-day period, the employer still intends to take the adverse action, it must notify the applicant of the rescission in writing.
The Act applies to any person or entity operating and doing business in Montgomery County that employs 15 or more full-time employees, including those engaged in paid or unpaid vocational or educational training, within the county. In addition to private employers, the Act also applies to the County government; however, it does not extend to the federal, state, or any other local government.
The Act expressly does not apply:
- when a federal, state, or county law or regulation expressly authorizes criminal background inquiries;
- to the County Police Department, Fire and Rescue Service, or Department of Corrections and Rehabilitation;
- to an employer that provides programs, services, or direct care to minors or vulnerable adults; or
- to an employer hiring for a position that requires a federal government security clearance.
Enforcement and Civil Penalty
An individual subjected to a discriminatory action or practice that violates the Act may file an administrative complaint with the Executive Director of the County’s Office of Human Rights, in accordance with the procedures for filing complaints under the County Human Rights and Civil Liberties Act. However, the only remedy is a fine for each violation of up to $1,000, payable by any person (other than the County) to the County as a civil penalty.
What Employers Should Do Now
As the Act takes effect on January 1, 2015, Montgomery County, Maryland, employers should, as soon as possible:
- review the jobs for which they are hiring to determine whether any of these jobs fall within an exemption to the applicability of the Act;
- review employment applications for new hires and similar forms used in connection with internal promotions, and remove questions seeking criminal background information for all positions that are covered by the Act or, if a multistate application is used, clarify that applicants for positions in Montgomery County should not respond to questions seeking criminal background information (unless an applicable exception applies);
- train recruiters, human resources personnel, managers, and others who conduct interviews to not ask about criminal history and to conduct criminal background checks after the completion of the first “interview,” as defined above;
- if background checks will not be conducted until after a conditional offer is made, include in offer letters a statement that the offer is contingent upon the successful completion of a criminal background check; and
- train recruiters, human resources personnel, and others who may be involved in deciding whether a criminal record should result in rescission of a conditional offer on the Act’s notification requirements.
In addition, Montgomery County employers may wish to take note of other recent area legislation, including:
- Maryland state legislation that will increase the state minimum wage to $8.00 per hour effective January 1, 2015, and $8.25 effective July 1, 2015, with additional annual increases through July 1, 2018;
- Montgomery County and Prince George’s County legislation that increased the minimum wage to $8.40 on October 1, 2014, with additional annual increases through October 1, 2017;
- District of Columbia legislation (most recently projected to take effect on December 17, 2014) that would enact a considerably stricter ban-the-box law applicable to D.C. employers that, among other things, generally bars inquiring about a criminal record prior to a conditional offer and also places restrictions on how conviction information can be used; and
- City of Baltimore legislation (Baltimore City Code art. 11, subtitle 15, effective August 13, 2014) banning the box, which is applicable to employers with 10 or more full-time equivalent employees in Baltimore and which, among other things, generally bars inquiring about a criminal record prior to a conditional offer.