Ban-the-Box Laws Limit Private Employers’ Criminal Background Inquiries

Executive Summary

Coverage:  The Montgomery County ordinance covers employers who have at least 15 full-time employees and do business in the County including County government. The Prince George’s County ordinance covers employers with at least 25 full-time employees in Prince George County.   

Effective Dates: Currently in effect.

Overview:  New ordinances in Montgomery and Prince George’s Counties, Maryland, limit an employer’s ability to inquire into an applicant’s criminal history. 

Action Required: Application forms and conviction inquiries may require updating to conform to the new laws. Employers also should review job descriptions and requirements carefully to determine whether any positions fall under any of the listed exceptions in these laws.

The Details

Montgomery County, MD

The Montgomery County ordinance became effective January 1, 2015. It covers employers who have at least 15 full-time employees and do business in the County including County government. Federal, state and local governments are excluded. The ordinance does not apply to the County Police Department, the Department of Corrections and Rehabilitation, the County Fire and Rescue Service, or to employers who provide programs, services, or direct care to minors or vulnerable adults or are hiring for a position that requires a federal government security clearance.

Covered employers may not inquire about an applicant’s arrest or conviction record or conduct a background check or related inquiry regarding arrests or convictions, as those terms are defined, before the conclusion of a first interview. An interview is defined as any direct contact by the employer with the applicant, whether in person or by telephone or internet communication, to discuss the employment being sought or the applicant’s qualifications. Written correspondence, email, or direct contact made for the purpose of scheduling a discussion is not considered an interview. Additionally, the ordinance specifically defines applicant to include a current employee seeking a promotion.

The ordinance permits an employer:

• To ask follow-up questions if the applicant voluntarily discloses criminal record information;
• To make inquiries regarding an applicant’s employment history based on the application or resume; and
• To make inquiries or take otherwise prohibited adverse actions if they are authorized by a federal, state, or county law or regulation.

The ordinance also imposes procedural requirements if an employer wishes to disqualify an applicant, which may include an employee considered for promotion, based on criminal information. These requirements need to be integrated with the Fair Credit Reporting Act (FCRA) pre-adverse and adverse action requirements, as applicable. If an employer intends to rescind a conditional offer of employment, the ordinance requires the employer to undertake the following steps before taking adverse action:

1. Provide the applicant or employee with a copy of any criminal record report;

2. Notify the applicant or employee of the prospective adverse action and the items that are the basis for the prospective adverse action; and

3. Delay rescission of the offer for seven days so that the applicant may provide notice of inaccuracy of the item or items supporting the employer’s rescission.

An employer taking adverse action against an applicant or employee based on an applicant’s criminal record must provide written notice of the decision.

NOTE -The adverse action process and notices provided by ADP Screening and Selection Services do not specifically include all of the elements listed above. Clients should contact their Human Resources Business Partner for assistance as needed to customize notices if applicants reside in Montgomery County or the physical location of the job is in whole or in part in the Montgomery County.  

Clients should contact ADP Screening and Selection Services at 888-606-7868 to delay the sending of a final adverse action letter (after a pre-adverse action letter is sent) for seven days if intending to take an adverse action. 

To ensure individuals are not retaliated against, the ordinance has a strong prohibition against any form of retaliation for (1) opposing an employer’s violation of the ordinance or filing a complaint, testifying, assisting, or participating in a related investigation, proceeding, or hearing; or (2) obstructing or preventing enforcement or compliance with the ordinance.

Any person aggrieved by an employer under the ordinance can file a complaint with the Executive Director of the County’s Office of Human Rights. Employers (except the County) are subject to civil penalties for violating the ordinance. 

Prince George’s County, MD

The Prince George’s County ordinance becomes effective January 20, 2015. It covers employers with at least 25 full-time employees in Prince George County, excluding federal, state and local governments. The ordinance does not apply to County public safety agencies, certain County jobs, or employers who provide programs, services, or direct care to minors or vulnerable adults.

Employers are prohibited from including a criminal conviction inquiry on their application form and may not ask about an individual’s criminal history, such as by conducting a background check, or make related inquiries to the applicant or others, until after the first interview. An employer is permitted to make inquiries or take otherwise prohibited adverse actions that are expressly authorized by a federal, state, or county law.

As with the Montgomery County ordinance, the Prince George’s County ordinance imposes procedural requirements if an employer wishes to disqualify an applicant based on criminal information. An employer who intends to rescind an offer of employment must undertake the following steps before taking adverse action:

1. Provide the applicant with a copy of any criminal record report;

2. Notify the applicant of the item or items that are the basis for the employer’s intended rescission; and

3. Delay rescission of the offer for seven days so that the applicant may provide notice of inaccuracy of the item or items supporting the employer’s rescission.

In making an employment decision based on an applicant’s criminal record, employers must first conduct an individualized assessment, considering only specific offenses that could demonstrate unfitness to perform the duties of the position for which the applicant applied or held the time elapsed since the time of the offense(s), and any evidence of inaccuracy of the record.

NOTE -The adverse action process and notices provided by ADP Screening and Selection Services do not specifically include all of the elements listed above. Clients should contact their Human Resources Business Partner for assistance as needed to customize notices if applicants reside in Prince George’s County or the physical location of the job is in whole or in part in the Prince George’s County.

Clients should also contact ADP Screening and Selection Services at 888-606-7868 to delay the sending of a final adverse action letter (after a pre-adverse action letter is sent) for seven days if intending to take an adverse action.

An employer rescinding an offer of employment based on an applicant’s criminal record must notify the applicant in writing.

The anti-retaliation provisions are the same as those in the Montgomery County ordinance, prohibiting any form of retaliation for (1) opposing an employer’s violation of the ordinance or filing a complaint, testifying, assisting, or participating in a related investigation, proceeding, or hearing; or (2) obstructing or preventing enforcement or compliance with the ordinance.

Also similar to the Montgomery County ordinance, a person aggrieved by an alleged violation of the ordinance can file a written complaint with the Executive Director of the County’s Human Relations Commission.

The Executive Director will promulgate rules and regulations regarding the implementation and administration of the ordinance, which are subject to approval by the County Council, within 60 days of the ordinance’s effective date.

As always, please contact your HR Business Partner if you have any questions.