Maryland employers with 15 or more employees are prohibited from inquiring about a job applicant’s criminal history during early stages of the hiring process.
The Maryland General Assembly voted recently to override Governor Larry Hogan’s May 24, 2019, veto of the Criminal Record Screening Practices Act (the Criminal Record Act), which he entered at the end of the 2019 legislative session. With the enactment of the Criminal Record Act, Maryland joins an increasing number of states—as well as neighboring District of Columbia—that have implemented laws (commonly known as “ban-the-box” laws) to limit employers’ ability to inquire about job applicants’ criminal or arrest histories during early stages of the hiring process. The Criminal Record Act is currently scheduled to take effect on February 29, 2020.
The Criminal Record Act prohibits employers with 15 or more full-time employees from inquiring about an applicant’s criminal record or whether any criminal accusations have been brought against the applicant prior to the applicant’s first in-person interview. The Criminal Record Act broadly defines “criminal record” to include an arrest, a plea or verdict of guilty, a plea of nolo contendere, the marking of a charge “STET” on the docket, a disposition of probation before judgment, or a disposition of not criminally responsible. The prohibitions under the Criminal Record Act do not apply to those employers (1) with fewer than 15 employees, (2) who are required to seek such information by federal or state law, or (3) who provide programs, services, or direct care to minors or vulnerable adults.
While the prohibitions apply only to applicants for employment, covered employers should be aware that the Criminal Record Act extends protection against retaliation or discrimination to both applicants and employees who claim a violation of the Criminal Record Act.
The Criminal Record Act does not contain a private right of action. However, applicants or employees who believe that an employer has violated the Criminal Record Act may file a complaint with the state’s Commissioner of Labor and Industry (the Commissioner). The Commissioner will investigate the complaint and, if a violation is found, may assess a civil penalty of up to $300 per violation.
Notably, the Criminal Record Act expressly provides that it does not preempt any ban-the-box laws enacted by local Maryland jurisdictions. Therefore, those employers with employees located in Baltimore, Montgomery County, and Prince George’s County should ensure that they are also in compliance with the ban-the-box laws already in effect in those jurisdictions.
Although it is possible that the General Assembly could seek to delay implementation of the Criminal Record Act, Maryland employers should prepare to take action to ensure they are in compliance with the new law before the scheduled February 29, 2020, effective date. Specifically, Maryland employers who use criminal background checks as part of their employment process should review their employment applications for compliance with the new requirements, and discuss the requirements with any third-party vendors potentially impacted by them. Employers should also train their human resources personnel about what can and cannot be asked or requested of job applicants during various stages of the hiring process.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Washington, DC
Lincoln O. Bisbee
Jocelyn R. Cuttino