October 31, 2020

Volume X, Number 305

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Maryland Becomes Latest State to ‘Ban the Box’

Maryland has joined a growing number of jurisdictions by enacting a “ban-the-box” law prohibiting employers from asking job applicants about their criminal history on the initial job application. The new Maryland law, the Criminal Record Screening Practices Act, will take effect on February 29, 2020.

The state’s Democratic-controlled legislature overrode Republican Governor Larry Hogan’s veto of the legislation (HB 994/SB 839) on January 30, 2020.

Prohibit Inquiries and Actions

Under the Act, employers with at least 15 full-time employees may not, before the first in-person interview, require an applicant for employment to disclose whether the applicant has a criminal record or has had criminal accusations brought against the applicant. The Act applies not only to traditional employment, but also more broadly to “any work for pay and any form of vocational or educational training, with or without pay,” including contractual, temporary, seasonal, or contingent work, and work assigned through a temporary or other employment agency.

Unlike some other “ban-the-box” laws that prohibit asking about an applicant’s criminal record at any time before a conditional offer of employment is made, the Act only prohibits such inquiries before the first in-person interview. Under the Act, an employer may require an applicant to disclose during the first in-person interview whether the applicant has a criminal record or has had criminal accusations brought against the applicant.

Employers also are prohibited from retaliating or discriminating against an applicant or employee as retribution for alleging a violation of the Act.

Exemptions

The Act does not apply to employers that provide programs, services, or direct care to minors or vulnerable adults. The Act also does not prohibit an employer from making a criminal record inquiry or taking other action that the employer is required or authorized to take under another federal or state law.

Enforcement and Penalties

The Commissioner of Labor and Industry is authorized to enforce the Act. If the Commissioner determines that an employer has violated this law, the Commissioner will issue an order compelling compliance. For each subsequent violation, in the Commissioner’s discretion, the Commissioner may asses a civil penalty of up to $300.

Federal Contractor and Local Ban-the-Box Laws

The Act permits local jurisdictions to enact “ban-the-box” legislation that is more restrictive than the state law. Currently, three local jurisdictions in Maryland (Baltimore City, Montgomery County, and Prince George’s County) already have more restrictive “ban-the-box” laws with greater requirements than the state law. Federal contractors also must comply with more restrictive requirements under the Fair Chance Act effective December 2021. Accordingly, employers should review and, if necessary, conform their current forms and practices to comply with federal, state, local laws and applicable guidances.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 43
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About this Author

Emmett F. McGee Jr., Jackson Lewis, human resource management lawyer, employment discrimination attorney
Principal and Office Litigation Manager Baltimore

Emmett F. McGee is a Principal and the Litigation Manager in the Baltimore, Maryland, office of Jackson Lewis P.C. He represents employers in all aspects of employment law and human resource management, including employment discrimination, wage and hour issues, and affirmative action planning.

In addition to advice and counsel on a broad range of employment issues, Mr. McGee’s practice includes litigation in state and federal courts throughout the country, as well as before administrative agencies and arbitration panels. He...

410-415-2003
Susan M. Corcoran, Jackson Lewis, fair credit reporting lawyer, Labor Policy Attorney
Principal

Susan M. Corcoran is a Principal in the White Plains, New York, office of Jackson Lewis, P.C. Ms. Corcoran is a seasoned employment counselor and litigator and is often thought of as the “go to” person on national workplace law issues for her clients.

She is one of the leaders of the firm’s Background Check Resource Group, and serves as a resource on fair credit reporting act issues, as well as “ban the box” strategies. She taught a graduate employment law class for many years at Manhattanville College and frequently speaks...

914-872-6871
Judah Rosenblatt Labor & Employment Attorney
Associate

Judah L. Rosenblatt is an Associate in the Baltimore, Maryland, office of Jackson Lewis P.C. He advises and represents employers in all aspects of labor and employment law.

Mr. Rosenblatt defends companies in employment-related litigation, including wage and hour disputes, employment discrimination, sexual harassment and retaliation suits, ADA and FMLA litigation, and wrongful discharge claims. He has experience handling disputes before state and federal courts, arbitration panels, and administrative agencies.

Mr. Rosenblatt also advises...

410-415-2012
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