Baltimore Mayor Signs “Ban the Box” Law Restricting Employers from Inquiring into Criminal History of Job Applicants

by Saul Ewing Arnstein & Lehr LLP
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Summary

On May 15, 2014, Baltimore City Mayor Stephanie Rawlings-Blake signed “An Ordinance Concerning ‘Ban the Box’— Fair Criminal Record-Screening Practices,” which prohibits any employer with 10 or more full-time equivalent employees in the City of Baltimore from inquiring as to whether a job applicant has a criminal record. Under the new law, covered employers may not include a box to mark or a question concerning an applicant’s criminal history on a job application. Employers also cannot orally ask job applicants about their criminal histories or perform a criminal background check until after a conditional offer of employment has been extended. Once the employer makes a conditional employment offer, however, it may obtain information about the applicant’s criminal record.

The ordinance contains an exception allowing employers to conduct pre-offer inquiries into an applicant's criminal past in two limited situations: (1) where the inquiry is specifically authorized by another law; or (2) for facilities servicing minors or vulnerable adults. Covered employers that violate Baltimore’s “Ban the Box” ordinance may be liable for back pay for lost wages, reinstatement, compensatory damages and reasonable attorney’s fees. Employers may also face criminal sanctions, including a fine of up to $500 and imprisonment for not more than 90 days for each offense.

The Equal Employment Opportunity Commission (“EEOC”) has long taken the position that requiring job applicants to provide information about criminal convictions and arrests results in an unlawful disparate impact on certain racial and ethnic groups. With its new ordinance, Baltimore City joins a growing trend of states and municipalities nationwide that have enacted laws preventing employers from requiring applicants to disclose their criminal history early in the hiring process.

The law becomes effective on August 13, 2014. To avoid running afoul of the ordinance, covered employers should remove questions on job applications requiring applicants to disclose criminal history information and refrain from inquiring into an applicant’s criminal background until after a conditional offer of employment has been extended. Employers operating in multiple locations must stay current on the status of applicable state and local laws regarding criminal background inquiries for each location in which they operate.

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