Baltimore City "Bans the Box"
April 30, 2014
The Baltimore City Council has passed legislation prohibiting private employers in Baltimore City from asking about an applicant’s criminal background until a conditional job offer has been made (i.e. “banning the box” about criminal records that would be checked on an employment application). Mayor Stephanie Rawlings-Blake has said that she will sign the legislation.
Effective 90 days from when the bill is signed by the Mayor, this law applies to any employer that employs 10 or more full-time equivalent employees in the City, including contractual, temporary, seasonal or contingent employees. Prior to extending a conditional job offer, an employer may not require an applicant to disclose his criminal record or charges (including on an application form), conduct a criminal background check, or make any other inquiry about an applicant’s criminal record or charges. Once an employer has extended an offer that is conditioned on a criminal background check, it may then obtain information about the applicant’s criminal record and, if warranted by information revealed by the background check, rescind the offer. The law exempts positions for which a criminal background check is required by law and, specifically, exempts facilities providing services to minors or vulnerable adults, defining the latter as “an adult who lacks the physical or mental capacity to provide for his or her own daily needs.” The law also prohibits an employer from retaliation and discrimination against an individual who claims a violation of this law.
An applicant can complain about alleged violations of the law to the Baltimore Community Relations Commission, which will investigate the complaint. If a violation is found, the BCRC can award the following: back pay for lost wages; reinstatement; compensatory damages including compensation for humiliation, embarrassment, and emotional distress, as well as expenses incurred in seeking other employment; and reasonable attorneys’ fees. The BCRC’s determination is subject to review by the state courts. Of particular concern, the law also provides for criminal penalties for violations, which are deemed misdemeanor convictions and subject to a fine of up to $500 and/or imprisonment for up to 90 days.
Employers should recognize that rescinding a job offer based on a criminal background check will highlight the reason for rejection, thereby putting the employer who relies on a conviction record at greater risk of litigation. It is therefore critical that Baltimore City employers ensure that they are using criminal record information in a manner that comports with the Equal Employment Opportunity Commission’s Guidance on “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.” As we more fully explained in our April 2012 E-Update, before disqualifying an applicant based on a criminal record, the employer must conduct an individualized assessment in order to determine if the information in the criminal record is job related and consistent with business necessity.