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Montgomery County, Maryland “Bans the Box”

Montgomery County, Maryland is the latest jurisdiction to “ban the box” by prohibiting private employers from making criminal inquiries on the initial employment application.

Montgomery’s new law takes effect on January 1, 2015 and applies to employers with 15 or more full-time employees in the County. The law covers applicants seeking paid employment or vocational or educational training (regardless of compensation) in the County. Current employees seeking promotion with an employer in the County also qualify as “applicants.”

The law prohibits employers from making inquiries about an applicant’s criminal record on an employment application or through another medium (such as a consumer reporting agency) until the conclusion of a 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. An interview, however, does not include written correspondence/email or direct contact made for the purpose of scheduling a discussion.

The law permits employers to inquire into an applicant’s criminal record when the applicant has voluntarily disclosed the existence of that record. In addition, an employer is not making an inquiry under the law when asking a question about an applicant’s employment history shown on the application or the applicant’s resume.

The law also does not apply where the employer provides programs, services, or direct care to minors or “vulnerable adults” (i.e., an adult who lacks the physical or mental capacity to provide for his or her own daily needs), or where the employer must inquire into an applicant’s criminal history as a matter of federal, state, or county law or regulation. Also exempted from the law are various county agencies (such as the police, fire, and corrections departments) and positions that require federal government security clearance.

Notably, the law provides employees with broad anti-retaliation protections when opposing or complaining about violations of the statute. Applicants or employees “aggrieved” by a violation of the law may file a complaint with the County Human Rights Commission, which can assess a penalty of up to $1,000 for each violation.

The notice obligations under the Montgomery law slightly differ from those required under FCRA. For instance, under the new law, when an employer intends to rescind a conditional offer of employment based on an applicant’s criminal history, it not only must provide the applicant with a copy of the “criminal report” and notify the applicant of the intention to revoke (consistent with FCRA), it also must specify the “items that are the basis for the intention.” Moreover, before taking a final adverse action, the employer must afford the applicant at least 7 days (as opposed to the recommended 5 business days under FCRA) to furnish “notice of evidence of the inaccuracy of any item or items on which the intention to rescind the conditional offer is based.” Under the new law, the employer also must “delay” the adverse action for a “reasonable period” after receiving the information, and reconsider the intended action in light of the information. And, should the employer take a final adverse action, it must notify the applicant within 7 days of the decision.

Takeaway

Unless otherwise exempted, Montgomery employers should remove any inquiries concerning an applicant’s criminal history from their initial job applications, and should wait to commence a criminal background check until after the conclusion of a first interview. When asking about or otherwise considering criminal history in hiring and personnel decisions, employers should remember to:

  • ensure that hiring guidelines regarding employment of individuals with criminal records are consistent with federal, state, and local law;

  • conduct individualized assessments of candidates when possible;

  • train managers on the appropriate use of criminal history in hiring, promotion, and separation; and

  • adhere to FCRA and other state and local requirements before conducting background checks and when considering or taking adverse actions against applicants or employees based on criminal history.

© 2015 Proskauer Rose LLP. National Law Review

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