Add another locality to the growing list that have “banned the box” for private employers.  Starting January 20, 2015, employers with at least twenty-five full-time employees in Prince George’s County (MD) can no longer ask applicants about their criminal records on employment applications (i.e., banning the box) or through another medium (such as a consumer reporting agency) until after the first interview.  Applicants covered under the new law include those seeking paid employment or vocational or educational training (regardless of compensation).

Following the first interview of the applicant, employers may ask about and otherwise consider that applicant’s criminal history, consistent with applicable federal and state law, so long as the employer conducts an “individualized assessment” and only considers (i) “specific offenses that may demonstrate unfitness to perform the duties of the position,” (ii) “the time elapsed since the specific offenses,” and (iii) “any evidence of inaccuracy in the record.”

The new law contains exceptions and does not apply:

  • where the employer provides programs, services, or direct care to minors or “vulnerable adults” (i.e., an adult who lacks the physical or mental capacity to provide for his or her own daily needs);
  • where the employer must inquire into an applicant’s criminal history as a matter of federal, state, or county law or regulation; or
  • to various county agencies or to positions that, in the judgment of the County, have access to confidential or proprietary business or personal information, money or items of value, or involve emergency management.

Notably, the new law provides employees with broad anti-retaliation protections when opposing or complaining about violations of the statute.  Applicants or employees “aggrieved” by a violation of the new law may file a complaint with the County Human Rights Commission.

It is also worth noting that the notice obligations of the new law slightly differ from those already required under the Fair Credit Reporting Act (“FCRA”)—a federal law that only applies to employers who solicit third-party vendors to run a background check.  Under the new law:

  • when an employer intends to rescind a conditional offer of employment based on an applicant’s criminal history, it not only must provide the applicant with a copy of the “criminal record report” and notify the applicant of the intention to revoke (consistent with FCRA), it also must specify the “items that are the basis for the intention”;
  • before rescinding the applicant’s conditional offer, the employer also must afford the applicant at least 7 days (as opposed to the recommended 5 business days under FCRA) to furnish “notice of evidence of the inaccuracy of any item or items on which the intention to rescind the conditional offer is based”; and
  • should the employer ultimately decide to rescind the applicant’s conditional offer, it must notify the applicant in writing of the decision.

The new law requires the County Human Rights Commission to adopt implementing rules and regulations by early February 2015.  Stay tuned for future developments in the New Year.