Governor Hogan’s recent decision to end Maryland’s participation in the federal enhanced employment benefits program and to reinstate the requirement that those collecting unemployment benefits resume their efforts to find work is likely to spur a hiring increase around the state. Employers looking to hire would be wise to verify that their hiring practices and procedures comply with Maryland’s relatively new criminal record/background check laws.  The law, known informally as “Ban the Box,” was passed by the Maryland legislature over Governor Hogan’s veto in February 2020, just before the employment challenges created by Covid-19. It prohibits a Maryland employer with 15 or more full-time Maryland employees from inquiring, at any time prior to the first in-person interview, as to whether a potential employee has a criminal record or has been accused of criminal conduct. Full-time employees can include those employed on a seasonal or temporary basis. In-person interviews include telephone and videoconference interviews. Employers that violate the law more than once are subject to a $300 fine for each employee from whom a prohibited inquiry was made.  

Significantly, a Baltimore City ordinance that has been in effect since 2014 and which applies to employers with 10 or more full-time employees in Baltimore City is even more restrictive. It prohibits covered employers from inquiring as to whether an applicant applying for a job in Baltimore City has a criminal record or has been accused of a crime or conducting a criminal background check prior to the employer making a “conditional offer” to the prospective employee.  The “conditional offer” may be explicitly conditioned on the results of a criminal background check. Significantly, the Baltimore City ordinance includes a provision allowing the Baltimore Community Relations Commission to recover lost wages, compensatory damages, and attorney’s fees on behalf of an applicant who was subjected to an unlawful inquiry.  

Both the Maryland law and the Baltimore City ordinance exempt employers that are required to inquire as to a prospective employee’s criminal history by federal law or another state law, as well as employers that provide services to minors and vulnerable adults.   

Employers that are subject to either of these laws should take a fresh look at all written and online applications to ensure that they contain no questions, or boxes that need to be checked, that relate to an applicant’s criminal history. Employers that use a single application in multiple states that includes criminal background questions should consider modifying the application to clearly indicate that Maryland residents should not respond to those questions. Employers should also remove references to criminal history from job postings and advertisements. Finally, employers that use recruiters or other third parties to screen potential employees should provide clear instructions that no inquiry be made into an applicant’s criminal history until the point in the process when it becomes permitted. 

If you have any questions about the legality of your application process, or if you are facing a claim or government inquiry into your hiring practices, the attorneys at Luchansky Law are here to help. Give us a call at(410) 522-1020

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