State of Maryland is the latest jurisdiction to join the growing trend of limiting the use of criminal conviction history in employment decisions by overturning the Governor’s veto of the Labor and Employment – Criminal Record Screening Practices (Ban the Box). The law prohibits employers from asking about an applicant’s criminal background history before the first in-person interview. As defined in the law, a criminal record includes an arrest, a plea or verdict of guilty, a plea of nolo contendere, the marking of a charge “STET” on the docket, a disposition of probation before judgement or a disposition of not criminally responsible.
Key Takeaways
- Applies to employers in the state of Maryland with 15 or more employees
- May not ask about criminal history prior to the first in-person interview
- May ask about criminal history during and after the first in-person interview
- Does not preempt any local jurisdiction from enacting or enforcing a law that is more restrictive with respect to criminal record screening practices
Which employers are affected?
This law applies to private and public employers with 15 or more employees. It applies to employment of any work for pay and any form of vocational or educational training, with or without pay, as well as contractual, temporary, seasonal, or contingent work.
What does this law include?
The law prohibits employers from asking about an applicant’s criminal background history before the first in-person interview. An employer may require an applicant to disclose during the first in-person interview with the applicant whether the applicant has a criminal record or has had criminal accusations brought against the applicant.
The law may not be construed to preempt a local jurisdiction from enacting or enforcing a law that is more restrictive with respect to criminal record screening practices of employers in the local jurisdiction.
Are there any exceptions?
This law does not prohibit an employer from making an inquiry or taking other action that the employer is required to take or is expressly authorized to take by another applicable federal or state law. In addition, the law does not apply to an employer that provides programs, services, or direct care to minors or to vulnerable adults. Please review and discuss with your legal counsel to determine if you meet one of the exceptions provided in the law.
Are there any penalties?
An employer may not take or refuse to take a personnel action or otherwise retaliate or discriminate against an applicant or employee as a reprisal for the applicant or employee having claimed a violation of this law.
The Commissioner may determine the amount of the penalty, if assessed, and consider the following:
- The gravity of the violation
- The size of the employer’s business
- The employer’s good faith and
- The employer’s history of violations under this subtitle
Recommendations
We recommend you review and discuss with your legal counsel your organization’s policies and procedures to ensure compliance with the changing laws and regulations.
Contact Accurate Background
For more information regarding recent legislative changes in other states and jurisdictions, visit our Legislative Updates page.
*Please note: Accurate prepared these materials for informational purposes only. These materials are not intended to be comprehensive, and are not a substitute for, and should not be construed as, legal advice. Accurate does not warrant any statements in these materials. Employers should direct questions involving their organization’s compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply, to their own legal counsel.