Baltimore City Enacts “Ban the Box” Law Restricting The Use Of Criminal Record Screening in Employment

Baxter, Baker, Sidle, Conn & Jones, P.A.
Employment Law Bulletin
June 2014
Baltimore City Enacts “Ban the Box” Law Restricting The Use Of Criminal Record Screening in Employment
by
Niccolò N. Donzella, Esquire

 

On May 28, 2014, the Mayor of Baltimore signed into law a new City ordinance, commonly known as “Ban the Box,” that prevents employers in the City from inquiring about a job applicant’s criminal record until a conditional offer of employment has been made. Excepting facilities serving minors and vulnerable adults, and where required or authorized by other law, Baltimore City employers may no longer ask about criminal records on application forms or in interviews. The law, which provides for civil and criminal penalties, goes into effect 90 days from May 28, 2014.

What is the purpose of the new law? The law is intended to address what the City Council finds to be pervasive discrimination against people with criminal records, particularly “people of color” and particularly in the area of employment. The law intends to assist such persons in finding employment by preventing employers from eliminating them from consideration based on an application or preliminary interview, thus assuring such applicants “an opportunity to be judged on his or her merit when initially applying for employment.”

Who is covered by the new law? The law covers applicants and employers, both of whom are broadly defined. An applicant is “any person who is being considered or who requests to be considered for employment in the City of Baltimore by a covered employer.” A “covered employer” is “any person that employs 10 or more full time equivalent employees in the City of Baltimore,” which includes both individuals and entities.

What type of employment is covered? The law defines employment to mean “any work for pay” and “any form of vocational or educational training, with or without pay,” and specifically includes “contractual, temporary, seasonal or contingent work” as well as “work though the services of a temporary or other employment agency.”

What activity is banned by the new law? The law prohibits covered employers from making “preliminary inquiries into [an applicant’s] criminal record.” Preliminary means prior to the employer’s extension of a conditional offer of employment, which may only be conditioned on a subsequent criminal background investigation or “some other contingency expressly communicated to the applicant at the time of the offer.” Thus, the law bars a covered employer from asking an applicant, either directly or indirectly, whether he or she has a criminal record or “otherwise has had criminal accusations brought against him or her.” Banned conduct includes questions or check boxes on applications, verbal questions during an interview, conducting a criminal background check, or “otherwise mak[ing] an inquiry of the applicant or others about whether the applicant has a criminal record or has had criminal accusations brought against him or her.” A “conviction” is defined as “any sentence arising from a verdict or plea of guilty or nolo contendere,” and it includes a sentence, incarceration or fine, and a suspended sentence.” While the law does not define “criminal accusations,” it is likely to be interpreted broadly to include indictments and arrests.

Are there exceptions to the new law? Yes. Preliminary inquiries into an applicant’s criminal record are still permitted where “required or authorized by other law,” as for example can occur in government contracting and in certain security settings, as well as “facilities servicing minors and vulnerable adults.”

What penalties does the new law provide? The law provides for both civil and criminal penalties. On the civil side, an aggrieved applicant may file a complaint with the City’s Community Relations Commission, which is empowered to investigate the complaint, hold a hearing, and issue a decision. The Commission is also empowered to award the following relief: back pay, reinstatement, compensatory damages for “humiliation, embarrassment, and emotional distress,” expenses incurred in finding other employment, and reasonable attorneys’ fees. The Commission’s decisions are appealable to the Court of Special Appeals. On the criminal side, a violator of the law is guilty of a misdemeanor and subject to imprisonment for not more than 90 days and a fine of not more than $500 for each offense.

What action should employers take? Remove questions about criminal history from applications and interviews, and review employee handbooks and personnel policies for compliance. Human resources personnel involved in hiring should be trained in the requirements of the new law.

As always, please call if you have questions.