“You’re not allowed to ask that (yet)!”

by Joseph M. Creed
December 5th, 2014

 

Understanding the new “ban the box” laws in Montgomery County and Prince George’s County

Criminal Record

            Most people would assume that the question, “do you have a criminal record?,” would come up early in a job application process. And if the answer is, “yes,” it would likely be a very short process. But within the last month, Montgomery County and Prince George’s County have enacted laws restricting employers’ use of criminal histories in hiring.[1] This post explores these new labor laws and how they will impact employers and employees in these counties.

What is a “ban the box” law?

            Ban the box” is the phrase that has been given to the legislative effort to restrict the use of criminal background checks in the hiring process. “Ban the box” is a reference to the fact that most job applications ask whether the applicant has ever been charged or convicted of a crime, requiring the applicant check a box for “yes” or “no.” The purpose of “ban the box” laws is to expand employment opportunities for those with criminal histories by restricting the use of criminal background checks for employment opportunities.

What are the requirements of the new county laws?

            Under current state and federal law, there is no express restriction on private employers’ use of criminal background checks in the hiring process. Both the Montgomery and Prince George’s County “ban the box” laws place new restrictions on employers with respect to the use of criminal histories in three phases of the hiring process: (1) the application, (2) the first interview, and (3) rescission of an offer.

 

(1)        Job Application

Under both the Montgomery and Prince George’s County laws, an employer may not require an applicant to disclose on a job application “the existence or details” of the applicant’s “arrest record or conviction record.” This is the so-called “ban the box” part of the law. It is very broad and essentially prohibits any questions about applicants’ criminal history on job applications.[2]

 

(2)        First Interview

            Under both the Montgomery and Prince George’s County laws, employers are prohibited from inquiring into a job applicant’s criminal history until after a first interview.[3] Specifically, an employer may not do any of the following before the conclusion of a first interview:

  1. Require the applicant to disclose his or her arrest or conviction record, or whether the applicant “otherwise has ever been accused of a crime,”
  2. Conduct a criminal background check; or
  3. Inquire with anyone as to whether the applicant has ever been arrested, convicted of a crime, or even accused of a crime.[4]

Only after the conclusion of a first interview may an employer—for the first time in the process—conduct a criminal background check of any kind.

 

(3)        Rescission of Offer

            Under both the Montgomery and Prince George’s County laws, if an employer makes an offer of employment, and intends to rescind the offer based on the results of a criminal background check, the employer must (1) inform the applicant in writing (including an explanation of the basis for the intention to rescind the offer);(2) give the applicant a copy of any criminal history report the employer has obtained; and (3) allow the applicant 7 days to dispute any inaccuracies in the report. If, after this 7-day waiting period, the employer decides to rescind the offer, it must inform the applicant in writing.

            There are some slight variations between the Montgomery and Prince George’s County laws as to these provisions. Whereas the Prince George’s County law applies if an employer intends to rescind “an offer,” the Montgomery County law applies if an employer intends to rescind “a conditional offer.”[5] In addition, the Prince George’s County law requires that if an employer makes an employment decision based on an applicant’s criminal history, the employer must “conduct an individualized assessment,” considering only criminal offenses that relate to the duties of the job and several other factors. There is no such requirement in the Montgomery County law.[6]

 

Which employers and jobs are covered?

The Montgomery County law generally applies to all employers in Montgomery County with at least 15 fulltime employees in the County. The Prince George’s County law generally applies to all employers in Prince George’s County with at least 25 fulltime employees in the County.

Both laws contain major exceptions:

  • Caregivers to minors and vulnerable adults. Both the Montgomery and Prince George’s County laws exclude “an employer that provides programs, services, or direct care to minors or vulnerable adults.”
  • Public safety agencies. In Montgomery County, the law does not apply to the Police Department, Fire and Rescue Service, or Department of Corrections and Rehabilitation. In Prince George’s County, the law does not apply to County public safety agencies.
  • Positions that involve a security clearance. The Montgomery County law does not apply to hiring for any position that requires a federal government security clearance. The Prince George’s County law does not apply to positions in which criminal background checks are required or authorized by federal, state, or county law.
  • Certain Prince George’s County government positions. Both laws apply to hiring for county government positions (with the exception of public safety agencies). However, the Prince George’s County law allows the County to, at its discretion, exclude positions that “have access to confidential or proprietary business or personal information, money or items of value, or involve emergency management.”

 

Which job applicants are covered?

            There is an important difference between the Montgomery and Prince George’s County laws regarding which “applicants” they apply to. The Prince George’s County law applies only to “applicants for employment.” However, the Montgomery County law applies not only to new job applicants, but also to current employees who apply for a promotion. In Montgomery County, all of the law’s restrictions apply equally to new applicants and current employees applying for a promotion.

When do the new county laws take effect?

            Montgomery County’s “ban the box” law takes effect January 1, 2015.

            Prince George’s County’s “ban the box” law takes effect January 20, 2015.

How will the new laws affect employers and employees?

            Employers in Montgomery and Prince George’s County should be familiar with the requirements of the new employment laws and adjust their hiring and promotion policies accordingly. Employees should be aware of their rights under the new laws and how to enforce them.

            It is also important to note that the Montgomery and Prince George’s County “ban the box” laws are part of a trend. In 2013, the Maryland General Assembly enacted a “ban the box” law that restricts the use of criminal background checks in hiring for most Maryland state jobs (it does not apply to private employers). In April 2014, Baltimore City enacted a “ban the box” law, which is more restrictive than the Montgomery and Prince George’s County laws. In September 2014, the District of Columbia enacted a similarly-restrictive “ban the box” law. And on the federal level, the EEOC has issued guidance that strongly discourages the use of criminal background checks early in the hiring process. The Montgomery and Prince George’s County laws continue this trend of legislation restricting the use of criminal histories in hiring. Employers and employees in all jurisdictions should be aware of this trend and stay up-to-date on this evolving area of the law.

       Any employer, employee, or job applicant with questions about the applicability and requirements of these laws should consult with an attorney.

 

 

[1]The Montgomery County Council enacted Bill 36-14 on October 28, 2014. The County Executive signed it into law on November 10, 2014. The Prince George’s County Council enacted CB-78-2014 on November 19, 2014. The County Executive signed it into law on December 4, 2014.

[2] “Arrest record” is defined in the same in both county laws: “information indicating that a person has been apprehended, detained, taken into custody, held for investigation, or otherwise restrained by a law enforcement agency or military authority due to an accusation or suspicion that the person committed a crime.” “Conviction record” is also defined identically in both laws: “information regarding a sentence arising from a verdict or plea of guilty or nolo contendre, including a sentence of incarceration, a fine, a suspended sentence, and a sentence of probation.” These definitions appear to leave little room for employers to inquire about arrest or criminal records on a job application.

[3] In the Montgomery County law, the term “interview” includes not only in-person interviews, but also “telephone or internet communication” “to discuss: (1) the employment being sought; or (2) the applicant’s qualifications.” (It does not include communications “made for the purpose of scheduling a discussion.”) “Interview” is not defined in the Prince George’s County law.

[4] Both County laws have identical language as to these provisions.

[5] “Conditional offer” in this context means an offer that is expressly conditioned on a criminal background check or any other “contingency expressly communicated to the applicant at the time of the offer.”

[6]The Montgomery County bill had an identical provision, but it was removed by amendment before the bill was passed.

Joe Creed is an attorney in Joseph, Greenwald & Laake’s Civil Litigation and Labor & Employment Groups. He is a knowledgeable advisor and skilled advocate for federal employees in all aspects of employment law. He is the author of “Employment Rights of Federal Employees,” a chapter in the Maryland Employment Law Deskbook.

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