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By: David Burkhouse, Esquire

On January 30, 2020, Maryland joined the ranks of the growing number of states with “ban the box” laws restricting pre-employment inquiries into an applicant’s criminal record. Although the governor vetoed the bill on May 24, 2019, the General Assembly voted to override the veto on January 30, 2020. As such, Maryland’s ban the box law (SB 839) will take effect on February 29, 2020.

Because the requirements of the new law conflict with many employers’ traditional hiring practices, a careful review of the law’s requirements is warranted.  The law applies to employers with 15 or more full time employees and applies to applicants seeking employment in any position for pay as well as applicants seeking positions in vocational and educational programs with or without pay. In addition, the law specifically covers applicants for contractual, temporary, seasonal, and contingent positions as well as applicants seeking work through a temporary or employment agency.

Subject to the exceptions discussed below, the law prohibits employers from requiring the disclosure of an applicant’s criminal record information prior to the applicant’s first in-person interview. The prohibition on requiring the disclosure of an applicant’s criminal record information is broad and encompasses information related to both prior criminal convictions and criminal accusations, i.e. arrests which did not result in a criminal conviction. However, the restrictions imposed by the law, do not prohibit an employer from requiring the disclosure of an applicant’s criminal record at the first in-person interview.

The law also provides certain exceptions to the restriction on pre-interview inquiries into an applicant’s criminal record.  Specifically, the restriction does not apply if another federal or state law either authorizes or dictates a pre-interview inquiry into an applicant’s criminal record or if the employer is engaged in providing programs, services, or direct care to either minors or vulnerable adults.

Employers failing to comply with the requirements of the law may find themselves subjected to costly and time consuming investigations, administrative orders compelling compliance, and fines of up to $300 per applicant. It should further be noted, that SB 839 does not preempt local jurisdictions from enacting or enforcing local laws which are more restrictive with respect to employers’ screening of an applicant’s criminal record. Jurisdictions including Baltimore City, Montgomery County, and Prince George’s County have adopted their own ban the box provisions and for this reason employers hiring in those jurisdictions should review the requirements of local laws which in many cases impose additional restrictions on obtaining and relying upon an applicant’s criminal record information.

 

Mr. Burkhouse is a Member with PK Law and is part of the firm’s Education, Labor and Employment Group. As part of Mr. Burkhouse’s employment law practice he counsels and represents employers regarding employment discrimination claims arising under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. Mr. Burkhouse also advises employers with regard to non-compete agreements, restrictive covenants, arbitration agreements, trade secrets, confidentiality agreements, and employee hiring and termination procedures.  Mr. Burkhouse can be reached at (410) 740-3150 or dburkhouse@pklaw.com.

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