“Ban the Box” – Criminal Background Checks in D.C. and Maryland

The District of Columbia, Montgomery County, and Prince George’s County have each recently passed “Ban the Box” ordinances. These new laws restrict an employer’s right to conduct criminal background checks on prospective employees. If you conduct business in any of those three jurisdictions, you must modify your pre-employment due diligence procedures to comply with the new laws. If you are seeking employment in any of those localities, the new laws establish limits on when your prospective employer may obtain a criminal background check, and how the employer may use the information produced by the background check. This article explains the three ordinances.

Purpose of the Laws

The three ordinances are intended to prevent employers from having a blanket policy against hiring anyone with a criminal record. The ordinances try to achieve that purpose by restricting (1) when employers may order a criminal background check on prospective employees, and (2) how the employer may use the information produced by the background check.

The ordinances passed by the District of Columbia, Montgomery County, and Prince George’s County differ with each other. Here is a summary comparison of the principal terms of each law:

1. What job positions are covered?

DISTRICT OF COLUMBIAFull or Part Time
MONTGOMERY COUNTYFull Time
PRINCE GEORGE'S COUNTYFull Time

2. What businesses are covered?

DISTRICT OF COLUMBIA11 or more employees who work in or "substantially" work in the District
MONTGOMERY COUNTY15 or more employees who work in the County
PRINCE GEORGE'S COUNTY25 or more employees who work in the County

3. Who is protected?

DISTRICT OF COLUMBIA(a) Applicants for jobs and possibly (b) employees seeking promotions (law unclear)
MONTGOMERY COUNTY(a) Applicants for jobs and (b) employees seeking promotions
PRINCE GEORGE'S COUNTYApplicants for jobs (does not cover employees seeking promotions)

4. What criminal background questions may an employer ask?

DISTRICT OF COLUMBIA May only ask about convictions or pending charges.
May not ask about (a) arrests, or (b) prosecutions for which individual was not convicted.
MONTGOMERY COUNTY May ask about entire criminal background.
PRINCE GEORGE'S COUNTY May ask about entire criminal background.

5. When may an employer ask questions about a candidate’s criminal background?

DISTRICT OF COLUMBIAAfter making conditional offer of employment
MONTGOMERY COUNTYAfter first interview (may ask follow up questions any time individual voluntarily discloses criminal background information)
PRINCE GEORGE'S COUNTYAfter first interview

6. May an employer decide not to offer a position to a candidate based on his or her criminal background?

DISTRICT OF COLUMBIANo. Employer may not ask about criminal background until job offer has been made.
MONTGOMERY COUNTYYes
PRINCE GEORGE'S COUNTYYes

7. If a position is not offered based on a candidate’s criminal background, what notice or procedural rights does the candidate have?

DISTRICT OF COLUMBIAEmployer must offer position before asking about criminal background
MONTGOMERY COUNTYNone
PRINCE GEORGE'S COUNTYNone

8. If a position is withdrawn based on a candidate’s criminal background, what notice or procedural rights does the candidate have?

DISTRICT OF
COLUMBIA
Applicant has 30 days after employer’s termination of offer or other “adverse action” to request
(1) a copy of all records used by employer in considering applicant, and
(2) a notice advising applicant of his/her right to file a complaint with the DC Office for Human Rights.
NOTE: The law also seems to apply to existing employees subject to any “adverse action,” such as denial of a promotion.
MONTGOMERY COUNTYBefore withdrawal of a job offer the employer must:
(1) give the applicant a copy of the criminal background check;
(2) notify the applicant that the employer intends to withdraw the job offer and the reasons for that withdrawal; and (3) delay rescinding the job offer for 7 days to allow the applicant to correct inaccuracies in the criminal records.
PRINCE GEORGE'S COUNTYBefore withdrawal of a job offer, the employer must:
(1) give the applicant a copy of the criminal background check;
(2) notify the applicant that the employer intends to withdraw the job offer and the reasons for that withdrawal; and (3) delay rescinding the job offer for 7 days to allow the applicant to correct inaccuracies in the criminal records.

9. What factors must an employer apply when considering a candidate’s criminal background?

DISTRICT OF COLUMBIAAn employer may withdraw a job offer or take other “adverse action” against the applicant only if employer has a “legitimate business reason.”
That reason must be “reasonable” in light of: (1) the specific duties and responsibilities of applicant’s job; (2) the bearing, if any, of applicant’s convictions on his ability to perform his duties; (3) the time elapsed since the applicant committed the crime; (4) applicant’s age when he committed the crime; (5) the frequency and seriousness of the crime; and (6) any information showing applicant’s rehabilitation or good conduct since the crime.
MONTGOMERY COUNTYNo factors mandated.
PRINCE GEORGE'S COUNTYEmployer must conduct an “individualized assessment” based on: (1) how applicant’s offenses may show unfitness to perform his job duties; (2) the time elapsed since the specific offenses; and (3) evidence of inaccuracy in the criminal records

10. Who enforces the law?

DISTRICT OF COLUMBIAAny “person…aggrieved” by employer’s action may file an administrative complaint with the District of Columbia Office of Human Rights (“OHR”).
OHR enforces the law, which creates no private cause of action.
Successful candidate shares fines collected by District (see No. 11 below).
MONTGOMERY COUNTYAffected candidate may file an administrative complaint with Montgomery County Office of Human Rights.
County enforces the law, which creates no private cause of action.
PRINCE GEORGE'S COUNTYAffected candidate may file an administrative complaint with Executive Director of the Prince George’s County Human Rights Commission.
County enforces the law, which creates no private cause of action.

11. What are the penalties for violations?

DISTRICT OF COLUMBIAFor employers with 11 – 30 employees, up to $1,000 for each violation.
For employers with 31 – 99 employees, up to $2,500 for each violation.
For employers with 100 or more employees, up to $5,000 for each violation.
The person who files the complaint receives one half of whatever fine the District levies against the employer.
MONTGOMERY COUNTYUp to $1,000 per violation. Candidate does not share fines assessed by County.
PRINCE GEORGE'S COUNTYCounty staff developing fines. Candidate does not share fines assessed by County.

12. Are there any exemptions from the law?

DISTRICT OF COLUMBIACourt, police and Federal employees are not covered.
Private employers with employees who work with minors or disabled adults are not covered.
Employers subject to any law that mandates or permits criminal background checks are exempt.
MONTGOMERY COUNTYCounty police, fire, and correctional employees, state employees, and Federal employees are not covered.
Private employers with employees who work with minors or disabled adults are not covered.
Employers subject to any law that mandates or permits criminal background checks are exempt.
PRINCE GEORGE'S COUNTYCounty police, fire, and correctional employees, state employees, and Federal employees are not covered.
Private employers with employees who work with minors or disabled adults are not covered.
Employers subject to any law that mandates or permits criminal background checks are exempt.

The foregoing summary shows the principal features of the three laws.

Note that the District’s ordinance encourages people to file complaints, by (a) not providing a clear legal framework by which an employer may rescind the job offer, (b) by allowing any person “aggrieved” by the employer’s decision (not only the applicant) to file a complaint, and (c) by sharing any fines assessed with the complainant. The Montgomery and Prince George’s Counties’ versions of the ordinance encourage the employer and applicant to resolve the dispute without filing a complaint.

Viewed from the employer’s perspective, employers should take the following steps:

1. Update your employment application forms to delete questions about the applicant’s criminal record.

2. In Prince George’s and Montgomery Counties, ensure that whoever conducts job interviews postpones asking about the applicant’s criminal background until the completion of the first interview. In the District, you may not inquire until after you have offered the applicant a job.

3. Once a criminal background check is legally permitted, the applicant may be required to authorize the criminal background check. That authorization must also comply with the Federal Fair Credit Reporting Act.

4. If you decide not to hire somebody based on his criminal record, the Prince George’s and Montgomery County ordinances distinguish between an applicant who has a job offer being revoked, and an applicant who has not received an offer at all. To avoid the notice and waiting period described above, it is likely better not to make any offers until after you have the results of the applicant’s criminal background check.

For further information please contact Randall K. Bowen or Brian M. Hudson using this website or by telephone at (703) 584-8400.

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