When Can an Employer Consider an Applicant’s Criminal History?

Your company’s job application process may have long included an initial inquiry into whether the applicant had been convicted of a crime. However, recent “Ban the Box” legislation being enacted in states and municipalities nationwide is changing the way employers can inquire into an applicant’s criminal background. Specifically, these laws require an employer to wait until either the first interview of an applicant or when the employer is ready to offer a job to an applicant, before inquiring into the applicant’s criminal background.

The purpose of these laws is to lower criminal recidivism. The idea being that applicants who were formerly convicted of a crime are needlessly being eliminated from consideration for employment based on a conviction from many years ago or completely unrelated to the position for which the individual is applying. Promoters of the legislation believe that “banning the box,” (that is the box next to the job application’s question asking the applicant to check the box if he or she has previously been convicted of a crime), will lead to employers hiring more convicted criminals. The hope is that by the time the employer learns of the conviction in the latter stages of the hiring process, it will have already developed a relationship with the candidate and therefore be less likely to withhold the job based on the candidate’s prior criminal conviction. Of course the overarching idea is that convicted criminals are less likely to return to crime if they are gainfully employed.

The first municipality to enact “Ban the Box” legislation in the Washington, DC metropolitan area is the District of Columbia. The District’s “Fair Criminal Record Screening Act of 2014” provides that an employer of ten or more employees may not inquire or require a job applicant to disclose a criminal conviction until after the employer makes a conditional offer of employment, i.e., an offer that is conditioned upon the employee successfully completing the criminal background check.
The DC law states that the employer may withdraw the conditional offer based on the criminal conviction shown in the background check if it is for a “legitimate business reason” reasonable in light of the following factors:

1. The specific duties and responsibilities necessarily related to the employment sought or held by the applicant;
2. The bearing, if any, the criminal offense for which the applicant was previously convicted will have on his or her fitness or ability to perform one or more such duties or responsibilities;
3. The time that has elapsed since the occurrence of the criminal offense;
4. The age of the applicant at the time of the occurrence of the criminal offense;
5. The frequency and seriousness of the criminal offense; and
6. Any information produced by the applicant, or produced on his or her behalf, in regard to his or her rehabilitation and good conduct since the occurrence of the criminal offense.

The law gives an employee who believes that his or her criminal history caused an employer to take an illegal adverse action the ability to file an administrative complaint with the DC Office of Human Rights (OHR). DC OHR can impose penalties of between $1,000 and $5,000 for violation of the law, depending on the number of employees employed by the employer, with half of the penalty going to the applicant who filed the complaint.

DC’s “Ban the Box” law does not apply in those situations in which a law requires the consideration of an applicant’s criminal history for the purposes of employment, such as an employer that provides services to minors or vulnerable adults. However, it does apply to independent contractors, temporary employees, and even unpaid interns. The DC law went into effect on October 21, 2014.

Montgomery and Prince George’s Counties as well as Baltimore City in Maryland enacted similar “Ban the Box” legislation in 2014. Like the DC law, Baltimore City’s law prohibits criminal background checks until the applicant is provided an offer of conditional employment and covers employers with ten or more employees. The Montgomery and Prince George’s County laws, however, cover employers with 15 or more employees; prohibit criminal record inquiries prior to the completion of the first interview, and require employers to provide notice and a copy of the background check to applicants when the employer intends to withdraw the conditional offer based on the results of the criminal background check both before it takes this action, to allow the employee 7-days to contest the accuracy of the background check, and then again after taking the final action. . Like the DC law, there is an exception for positions where federal or state law requires or authorizes an employer to obtain criminal background information from applicants and for positions for which the employee will provide programs, services, or direct care to minors or vulnerable adults.

The Maryland Ban the Box law went into effect February 28, 2020, following the Maryland legislature’s overturn of the Governor’s veto on the bill passed at the end of the legislature’s 2019 session. Under the Maryland law, employers of 15 or more employees may not inquire into an applicant’s prior criminal conviction history before the first in-person interview. But the information may be discussed in this first interview. The same exemption exists for criminal background inquiries required or authorized by federal or state law and for positions for which the employee will provide programs, services, or direct care to minors or vulnerable adults.

The Maryland law does not preempt the local ban the box laws already in effect in Prince George’s County, Montgomery County and Baltimore City. So Employers in these jurisdictions must follow the laws that provides the greatest benefits to the employee and delay review of the criminal background information until either the completion of the first interview (Montgomery and Prince George’s Counties) or at the time a conditional offer of employment is extended (Baltimore City).

Thus, employers in Maryland and the District should act now to comply with the various Ban the Box laws by:

• Determining which positions legally require consideration of an applicant’s criminal history at the pre-interview and pre-offer stage;
• Revising employment applications to eliminate any questions pertaining to criminal convictions for all positions where it is not legally required;
• For Maryland employers outside of Baltimore City, deciding whether to inquire about an applicant’s criminal convictions following the first interview or at the conditional offer stage;
• Updating form offer letters to specify that the job offer is conditioned upon successful completion of a criminal background check for Maryland employers choosing to wait until the conditional offer stage, Baltimore City employers, and employers in the District;
• For Montgomery and Prince George’s County employers, preparing appropriate pre- and post- adverse action notices when taking action based on criminal history; and
• Training managers not to inquire as to criminal background in earlier stages of the hiring process than what is permitted by applicable law.

Julie Reddig is an employment attorney who represents management in workplace employment matters. For more information on the impact of the new tax law on workplace sexual harassment settlements, contact Julie at [email protected].