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Montgomery County Passes "Ban the Box" Ordinance

December 8, 2014

Effective January 1, 2015, employers with 15 or more full-time employees in Montgomery County, Maryland will be prohibited from inquiring about a job applicant’s criminal history prior to the conclusion of the first interview.  Montgomery County is the second jurisdiction in Maryland to pass “ban the box” legislation.

Montgomery County’s “ban the box” law differs from that of the Baltimore City legislation that took effect in August 2014.  See (Link to Baltimore City Ban the Box article).  While both laws limit employers’ ability to inquire about a job applicant’s criminal history, the Baltimore City ordinance prohibits any such inquiries until after a conditional offer of employment is made.  However, in Montgomery County, employers do not have to wait that long.  Under the County’s law, employers can ask about an applicant’s criminal history after the conclusion of the first interview.

An “interview” is any direct contact by the employer with an applicant, whether in person or by telephone or internet communication regarding the employment sought or the applicant’s qualifications, but it does not include communications made for the purpose of scheduling an interview.   Notably, the law considers employees who are interviewing for a promotion with their current employers as “applicants,” and thus they too cannot be asked about their criminal history prior to the first interview.  Nothing in the law prohibits employers from inquiring into an applicant’s criminal history when the applicant voluntarily discloses the existence of a criminal record.  Employers also are not prohibited from asking questions about an applicant’s employment history shown on the application or the applicant’s resume.

The law does not apply where the employer provides programs, services, or direct care to minors or “vulnerable adults,” or where the employer must inquire into an applicant’s criminal history as a matter of federal, state, or county law or regulation. In addition, the county police, fire, and corrections departments and positions that require federal government security clearances are exempt from the law.

Notice Obligations

The law imposes on employers certain notice obligations. If an employer intends to rescind a conditional offer based on an applicant’s criminal record, it must: (1) provide the applicant with a copy of any criminal record report; (2) notify the applicant of the intention to revoke the offer and explain the reason for the decision to revoke the offer; and (3) delay rescinding the offer for seven (7) days to allow the applicant to dispute the basis for rescinding the offer.  If the applicant provides timely information, the employer must delay the adverse action for a “reasonable period” after receiving the information, and reconsider the intended action in light of the information.  If the employer still decides to rescind the offer, it must notify the applicant in writing within 7 days of the decision.

Recommended Steps for Employers

Employers should note that the law contains strong anti-retaliation provisions, which could subject employers to fines and damages.  Accordingly, Montgomery County employers should consult with their employment counsel and consider doing the following before January 1, 2015:

1.  Revise job applications to remove the criminal history “box” or other questions about criminal background.

2.  Revise their hiring procedures to postpone inquires about criminal history until after the first interview.

3.  Train personnel involved in the hiring and firing process on the new law and the appropriate use of criminal history in the hiring, firing, and promotion process.

Melissa Jones, chair of the Employment and Labor Group, defends and counsels employers on labor and employment matters.  If you would like further information, please contact Ms. Jones via email.

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