Effective August 13, 2014, certain Baltimore City employers will be restricted from asking applicants and employees about their criminal history. However, many health care employers will be exempt from this new law either because they serve vulnerable adults and/or because a state or federal law requires criminal background checks prior to and during employment.

Ban the Box Details

The law, passed by the City Council as a bill titled “Ban the Box” – Fair Criminal-Record Screening Practices, applies to employers with 10 or more full-time equivalent employees in Baltimore City, as well as applicants of those covered employers who will work in Baltimore City. “Ban the Box” refers to the question on most employment applications inquiring about criminal history. Consequently, prior to August 13, 2014, if you are an employer with 10 or more employees in Baltimore City who is not otherwise exempt from this law as described below, it is imperative that you remove from your application any inquiry about criminal history and also train hiring staff for compliance with this new law, as detailed below.

The law differentiates between two types of criminal history – arrest records and conviction records.

Regarding arrest records, under the new law, covered employers are prohibited from asking or requiring applicants and current employees to disclose any arrest or criminal accusation that (1) is not pending and (2) has not resulted in a conviction. Likewise, if the covered employer learns of an arrest of or a criminal accusation against that person, the employer is prohibited from taking any adverse action based on that knowledge.

With regard to conviction records, covered employers are prohibited from asking or requiring from applicants the following until after a conditional offer of employment is extended; (1) asking an applicant about his or her criminal record, (2) requiring an applicant to disclose his or her criminal record or (3) conducting a criminal record check on an applicant. A criminal conviction record, as distinguished from an arrest record, is defined as conviction arising from a verdict or plea of guilty or nolo contendere, including a sentence of incarceration or fine and a suspended sentence. Once a conditional offer of employment is extended, criminal conviction history is no longer restricted under the Baltimore City law. However, the guidance of the Equal Employment Opportunity Commission, which enforces Title VII, the federal law prohibiting discrimination on the basis of race, among other characteristics, should still be followed.

The EEOC takes the position that applicant/employee convictions should only be considered by employers when the convictions are “job related and consistent with business necessity.” In other words, employers should do targeted screening according to the nature of the specific job, and take into consideration the nature of the crime, as well as the time elapsed since the conviction. This guidance is aimed at protecting minorities who may be subject to more arrests or convictions from being disproportionately screened from employment opportunities.

Exempt Employers

Employers exempt from this new law are those (1) that are expressly authorized by another law to inquire about arrest records or convictions and/or (2) that provide programs, services or direct care to minors or vulnerable adults. A vulnerable adult is defined as a person “who lacks the physical or mental capacity to provide for his or her own daily needs.”

For example, adult day care centers, hospitals, hospices, assisted living facilities, and home health agencies are all exempt from the Ban the Box law because each serves vulnerable adults. Additionally, these types of facilities would be exempt because Maryland law requires adult dependent care programs — which includes each of these facilities — to conduct criminal background checks on applicants and employees who have routine, direct access to the dependent adults and who are not otherwise licensed health care workers.

Health care employers required by law to perform criminal background checks should continue to follow the requirements of the applicable law. Those employers serving vulnerable adults, without a legal mandate to perform criminal background checks, should continue to follow the guidance of the EEOC mentioned above. Note that it is rare for employers to be legally required to search arrest records and EEOC guidance states that an arrest record should generally not be used in employment decisions.

Though this new law and its exemptions seem straightforward, there are caveats. Reviewing your current criminal background check policy with your counsel is prudent.

Penalties for Violations

For violations, employees have the option to file a complaint with the Baltimore Community Relations Commission. The Commission may award any or all of the following remedies: back pay for lost wages caused by the violation, reinstatement to employment, compensatory damages and/or attorneys’ fees. Employers are prohibited from retaliating or discriminating against any person who makes a complaint. Volators of the Ban the Box law can be charged with a misdemeanor and be subject to a fine of up to $500 and/or imprisonment for up to 90 days for each offense.

The Baltimore City law is one of many similar laws passed recently in cities across the country. The purpose of the law is to prevent unfair, blanket elimination of employees and applicants with criminal histories from employment consideration.