Maryland Enacts Ban-the-Box Law: How Your Organization Can Ensure Compliance

McNees Wallace & Nurick LLC

McNees Wallace & Nurick LLC

If your business operates in Maryland, you need to be aware of SB 839, a law that took effect February 29, 2020.  SB 839 prohibits employers with 15 or more full-time employees from asking job applicants about their criminal history prior to the first in-person interview.  Specifically, the law precludes employers from asking applicants whether they have a criminal record or have been accused of a crime.   As a result, employers may no longer ask applicants about their criminal history on a job application or during a phone interview.

SB 839 defines employment as “any work for pay and any form of vocational or educational training, with or without pay.”  This includes “contractual, temporary, seasonal, or contingent work” and work assigned through a temporary or other employment agency.

There are exceptions to SB 839.  For example, an employer may ask about an employee’s criminal history if the employer is required to or is authorized by another applicable federal or state law.  Additionally, prohibition on seeking criminal history information early in the application stage does not apply to employers that provide programs, services, or direct care to minors or vulnerable adults.

The Commissioner of Labor and Industry is authorized to enforce SB 839.  If an employer violates SB 839, the Commissioner will issue an order compelling compliance.  The Commissioner may assess a civil penalty of up to $300.00 for each subsequent violation.

It is important to note that the Act does not preempt local governments from enacting more restrictive ban-the-box ordinances.  For example, Baltimore City maintains an ordinance that prohibits an employer from asking about an applicant’s criminal history until after the employer makes a conditional offer of employment.  This ordinance is more restrictive than the new statewide law.

There are other notable differences between Maryland’s ban-the-box law and the local ordinances, such as the number of employees required to trigger SB 839.  If you operate in multiple counties in Maryland, make sure you are aware of these requirements.

All employers operating in Maryland should take the opportunity to audit, and if necessary, revise their hiring practices, application forms, and policies to ensure compliance with Maryland’s statewide and local ban-the-box laws. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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