Maryland’s General Assembly Overrides “Ban the Box” Veto – What’s Next for Employers

By Fiona W. Ong & Elizabeth Torphy-Donzella - Shawe Rosenthal LLP

February 3, 2020

On January 30, 2020, the Maryland General Assembly voted to override Governor Hogan’s veto of the “Ban the Box” bill that was passed in the last legislative session, just as we predicted. The law will prohibit employers in Maryland from inquiring about an applicant’s criminal history until later in the application process. It takes effect on February 29, 2020, and Maryland employers should prepare now to comply with the new requirements.

What the Law Does. The “box” refers to the box contained on many employment applications, which must be checked if the applicant has a criminal record. This bill is intended to give those with criminal records a better chance at finding jobs by prohibiting employers with 15 or more employees from asking about an individual’s criminal record prior to the first in-person interview. During that interview, however, such information may be required to be disclosed.

“Employment” is defined as any work for pay and any form of vocational or educational training, with or without pay.  It includes contractual, temporary, seasonal, or contingent engagements, as well as those engage through temporary or other employment agencies.

“Criminal record” is defined as: an arrest; a plea or verdict of guilty; a plea of nolo contendere (i.e. no contest); the marking of a charge “STET” on the docket (i.e. no further prosecution); a disposition of probation before judgment; or a disposition of not criminally responsible.

The bill provides for exceptions to the prohibition where an employer is required or authorized to seek such information by Federal or State 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.

Employers are also prohibited from retaliating or discriminating against an applicant or employee for claiming a violation of this law. The Commissioner of Labor and Industry may assess a civil penalty of up to $300 for each applicant or employee as to whom there was a violation. The law does not allow applicants to bring a lawsuit against employers for violations.

No Preemption of Local Laws. Of note, the bill specifically does not preempt any local ban-the-box laws, such as those previously enacted by Baltimore City, Prince George’s County, and Montgomery County. Those local laws impose greater restrictions on employers than this bill. (Now is also a good time for employers in Baltimore City, Prince George’s County, and Montgomery County to ensure that they are complying with the requirements of those laws). It is possible that the business community will seek to revise the law to include such preemption during the current legislative session.

Use of Criminal History Information

Once an employer is legally able to receive the criminal history information, whether directly from the applicant or through a background check (at or after the in-person interview), the employer still must be careful in using the information to disqualify an applicant from further consideration for employment. The Equal Employment Opportunity Commission has targeted policies that automatically disqualify applicants based on criminal background, asserting that such policies have a disparate impact on minority applicants, who are statistically more likely to have a criminal record.

According to the EEOC, which has issued an Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, an employer may not rely on arrests in making hiring decisions, and convictions must be job-related in order to be disqualifying. There are three factors that the EEOC deems relevant:

1. The nature and gravity of the offense or conduct;
2. The time that has passed since the offense or conduct and/or completion of the sentence; and
3. The nature of the job held or sought.

In looking at these three factors, employers are supposed to conduct an individualized assessment. According to the EEOC, an “{i]ndividualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.” Such additional information may consist of specific evidence such as:

-The facts or circumstances surrounding the offense or conduct;
-The number of offenses for which the individual was convicted;
-Age at the time of conviction, or release from prison;
-Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct;
-The length and consistency of employment history before and after the offense or conduct;
-Rehabilitation efforts, e.g., education/training;
-Employment or character references and any other information regarding fitness for the particular position; and
-Whether the individual is bonded under a federal, state, or local bonding program

The EEOC acknowledges that there may be certain positions for which the employer may adopt a policy that particular felonies are automatically disqualifying, but any such policy “would need to be narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question.”

As we discussed in August, the U.S. Court of Appeals for the Fifth Circuit (which covers Louisiana, Mississippi, and Texas) found that the Equal Employment Opportunity Commission exceeded its authority when it issued this Enforcement Guidance, and the Fifth Circuit therefore prohibited enforcement of the Guidance against the State of Texas.

We would expect the EEOC to continue to apply the Guidance to employers located outside the Fifth Circuit. While those other employers could similarly argue that the Guidance is unenforceable, it is possible that a different court could side with the EEOC. But even if the Guidance were ultimately found to be wholly unenforceable, the general principles articulated in it, which are drawn from prior caselaw, may still be applicable to a discrimination claim. Thus, employers should continue to be thoughtful when considering an applicant’s or employee’s criminal background, and should do so on an individualized basis.

Next Steps for Employers.

Employers must revise their application forms to remove the criminal history question and update any agreements with agencies to ensure that there is no requirement to seek criminal history information before it is legally allowed. In addition, recruiting personnel and hiring managers must be trained to avoid asking about an applicant’s criminal record until the first “in-person” interview. An open question is whether a telephone interview would be considered “in-person,” particularly since some employers only do telephone interviews. (Baltimore City employers should be aware that they may not ask for criminal record information until a conditional offer of employment is made; Montgomery County employers must wait until the end of the first interview.)

Finally, employers that are permitted or required to obtain criminal history as a condition of employment still will be allowed to do so as part of the application process. However, in most cases only some positions will fall within this exception.  Thus, employers may decide that adopting a uniform rule of delaying criminal history inquiries until the first interview is more administratively workable.