Maryland Governor Larry Hogan Vetos the Ban the Box Bill

By Fiona W. Ong - Shawe Rosenthal LLP

May 28, 2019

Maryland Governor Larry Hogan announced on May 24, 2019 that he was vetoing HB994, the “Ban the Box” bill, as our partner Liz Torphy-Donzella predicted he would do in our webinar on Maryland’s recently enacted employment laws. This means that, absent a veto override, this bill will not become law. The bill, however, passed with veto-proof majorities in both the House and Senate, so we will likely see a veto override in the next General Assembly session.

What the Bill Does. The “box” refers to the box contained on many employment applications that must be checked if the applicant has a criminal record. This bill is intended to give those with criminal records a better chance at employment by prohibiting employers with 15 or more employees from asking about an applicant’s criminal record prior to the first in-person interview. Then during that interview, such information may be required to be disclosed. The bill provides for exceptions to the prohibition where an employer is required or authorized to seek such information by law or where an employer provides programs, services, or direct care to minors or vulnerable adults. In these cases, the employer may require the disclosure of a criminal record upon application.

The Governor’s Reasons. In a letter to Senate President Mike Miller and House Speaker Adrienne Jones, Governor Hogan explained the reasons for his veto.

Noting that “Employers have the right, and often the need, to know the criminal history of applicants they may hire,” the Governor stated that the bill “would result in costly and time-consuming human resources work that ultimately goes nowhere.” By the time an employer discovers that an applicant may have a disqualifying background, alternative candidates might not be available and the employer would have to restart the entire process. This would have “a particularly negative impact” on high-turnover industries or those that require positions to be filled quickly.

Another point raised by the Governor is the fact that the bill specifically allows local jurisdictions to enact their own, more restrictive laws. Notably, Prince George’s and Montgomery Counties, as well as Baltimore City, have already passed their own Ban the Box laws. This imposes additional burdens on employers to ensure compliance with a patchwork of laws.

The Governor acknowledged that giving employment opportunities to those with criminal records is “an important part of any just and effective criminal justice system.” He remarked that he has worked with the General Assembly over the past several years to shield minor offenses from public disclosure, to create certificates of rehabilitation, and to expand expungement opportunities. The Governor stated, however, that, “when and how an employer asks about criminal history is a decision that should be left to employers, not dictated by the legislature and micro-managed in the annotated code.”

The Governor also expressed concerns about safety, notwithstanding the exemptions for those working with children or vulnerable adults, noting that the bill fails to differentiate between serious, potentially violent felonies and less serious misdemeanors. Moreover, the bill also fails to exempt occupations related to the applicant’s specific criminal conviction(s).

What Next? At this point, the General Assembly could vote to override the veto. However, this vote would not take place until the next General Assembly Session (since it is unlikely any special session will be called), which begins on January 8, 2020, after the bill’s proposed effective date of January 1, 2020.

3/5 of the members of each house must vote to override the veto – in the Senate, a veto override would require 29 votes, and in the House of Delegates, 85 votes. The bill passed the Senate with 30 “yes” votes, and the House with 97 “yes” votes. Thus, both houses passed the bill with veto-proof margins, and it is likely that they will override the veto. If so, the law would take effect 30 days after the veto override.

We will keep you posted on further developments.