If you’re an individual with a criminal record and you’re struggling to find employment, you’re not alone. Approximately one in three American adults has a criminal record. Meaning, many people have experienced firsthand the ways in which having a criminal record can become a barrier to employment.
But are employers legally permitted to ask about your criminal history when you’re applying for a job?
Maryland’s “Ban the Box” Law
In February of 2020, Maryland joined approximately half of the states in passing its version of “ban the box” legislation, the Criminal Records Screening Practices Act. Md. Code, Lab. & Empl. §§ 3-1501, et seq. In general, the ban the box law aims to protect applicants in the preliminary stages of hiring from being discriminated against for having a criminal record.
What does “criminal record” mean?
“Criminal record” does not only refer to a criminal conviction. The law defines “criminal record” as:
an arrest;
a plea or verdict of guilty;
a plea of nolo contendere;
the marking of a charge “stet” on the docket (meaning, no further prosecution);
a disposition of probation before judgment; or
a disposition of not criminally responsible.
Does the law apply to applicants for all types of employment?
The statute defines “employment” as “any work for pay and any form of vocational or educational training, with or without pay,” which includes “contractual, temporary, seasonal, or contingent work,” or work assigned through a temporary or other employment agency.
What does this law do/not do?
What the law does:
prohibits employers with 15 or more full-time employees from inquiring into an applicant’s criminal history, including whether they have a criminal record or whether they have had criminal accusations brought against them, prior to the employer conducting its first in-person interview with the applicant; and
prohibits such employers from taking or refusing to take a personnel action or otherwise retaliating or discriminating against an applicant or employee as a reprisal for the applicant or employee having claimed a violation of this law.
What the law does not do:
does not prohibit an employer from inquiring into an applicant’s criminal history if another applicable federal or state law requires or expressly authorizes the employer to make such an inquiry;
does not prohibit an employer from inquiring into an applicant’s criminal history during the first in-person interview with an applicant;
does not apply to employers that employ less than 15 full-time employees; and
does not apply to employers that provide programs, services, or direct care to minors or to vulnerable adults.
Local Ban the Box Requirements
Maryland’s state ban the box law does not prevent local jurisdictions from enacting or enforcing similar laws with respect to criminal record screening practices of employers within the local jurisdiction. The following Maryland counties have their own, more restrictive ban the box ordinances:
Baltimore City:
applies to employers with 10 or more employees; and
only permits inquiries into an applicant’s criminal history after employer makes a conditional offer of employment to the applicant.
File a complaint with the Baltimore City Office of Equity and Civil Rights here.
Montgomery County:
applies to employers with 15 or more employees;
only permits inquiries into applicant’s criminal history after an applicant’s first interview (as opposed to during an applicant’s first interview, like the state law); and
requires employers to provide pre and final adverse action notices to applicants when the employer intends to withdraw a conditional offer of employment based on the applicant’s criminal history.
File a complaint with the Montgomery County Office of Human Rights here.
Prince George’s County:
applies to employers with 25 or more employees;
only permits inquiries into applicant’s criminal history after applicant’s first interview; and
requires employers to provide pre and final adverse action notices to applicants when the employer intends to withdraw a conditional offer of employment based on the applicant’s criminal history.
File a complaint with the Prince George’s County Office of Human Rights Investigation Division here.
What should I do if a prospective or current employer violates the ban the box law?
If you believe an employer has violated Maryland’s ban the box law, either during the application process or after hiring, you can submit a complaint of discrimination to the Maryland Commissioner of Labor and Industry.
If the Commissioner determines that the employer violated the statute, then the Commissioner will issue an order compelling compliance. If an employer violates the statute a subsequent time, the Commissioner has discretion to impose a civil fine of up to $300 for each applicant or employee who was impacted by the employer’s violation.
The Bottom Line
Under most circumstances, you do not have to disclose your criminal record on a job application, and an employer may be in violation of Maryland’s ban the box law if it requires you to do so. Additionally, you cannot be retaliated against for raising the issue with a prospective or current employer.
That said, if you believe a prospective or current employer has either discriminated or retaliated against you in violation of this law, your only remedy as of the publication of this blog post is to file a complaint with the Maryland Commissioner of Labor and Industry (or local agency equivalent), who may order compliance and impose a civil fine against the employer.
The statute does not create a private right by which you may sue the employer for violating the statute.
Additional Resources
If you have questions about Maryland's ban the box law or need a confidential consultation with a Maryland employment lawyer, contact us today.
This blog post was first published by Attorney Bethany J. Callahan, Esq., on April 16, 2024.
