Hunton Employment & Labor Perspectives

“Ban-the-Box” legislation has seen steady growth throughout the country for more than two decades.  Currently, there is no federal legislation on the topic for private employers but a good number of states have limited their ability to inquire about or make decisions based on a prospective employee’s criminal background history. But state laws are not the only legislation for private employers to be cognizant of. Ban-the-Box laws also exist for them on the microlevel – in cities and counties – sometimes with more restrictive provisions than their statewide counterparts.  Maryland’s Prince George’s County is the latest locality to have a more restrictive Ban-the-Box law than the state in which it resides.

On September 16^th, Prince George’s County enacted its amended Ban-the-Box ordinance. The law now prohibits employers with 10 or more full-time employees from asking about or investigating an applicant’s criminal history until after the initial interview.  Even after the initial interview, employers are prohibited from asking about or considering the following:

• Nonviolent felony convictions that occurred five years earlier;
• Misdemeanor convictions that occurred 30 months earlier;
• Arrests without conviction (except where the result was probation before judgement, at which point the arrest would be treated as a misdemeanor);
• Marijuana-related offenses provided the sentence for the crime was completed (unless the conviction included an intent to distribute).

The less restrictive State of Maryland’s Ban-the-Box law, on the other hand, applies to employers with 15 full-time employees and employers are permitted to inquire about an applicant’s criminal history during the initial interview with no further restrictions.

Localities having different, sometimes more restrictive, criminal background history laws than their state is common throughout the country.  Indeed, while the states such as Florida, Georgia, Iowa, Missouri, and Texas do not have Ban-the-Box laws for private employers, they have localities within them that do. Other states such as Michigan and Pennsylvania have “Clean Slate Laws” (laws that, most notably, wipe certain convictions automatically from an individual’s record after their record has been clean for a certain amount of time) but cities within them still have outright Ban-the-Box laws.

In other states, the localities might have more restrictions in their Ban-the-Box laws than their state’s Ban-the-Box laws, like Prince George’s County.  The different restrictions appear in various areas of the law, such as who is bound by the law, at which stage inquiries about criminal history are permitted and which crimes can be considered in decision-making, if at all.  For example, in Chicago, all employers are bound by their Ban-the-Box law, while the statewide ban only applies to employers with 15 employees.  In Portland, Oregon, the employer may only ask about criminal history after they have made a conditional offer of employment, but in the state of Oregon an employer may ask about an applicant’s criminal history after they reach the interview stage.  In Spokane, Washington, an employer may not ask about an employee’s criminal history until after the initial interview, while the state of Washington permits employers to ask after they are deemed “otherwise qualified” (this determination likely occurs after the resume or application review stage.)  In the County of Los Angeles in California employers may not ask about convictions that are more than seven years old, while the state of California has no per se lookback limitation.

Private employers are encouraged to review their criminal background check procedures to ensure that they comply with their relevant jurisdiction, be it state or locality.  Maryland employers in particular are encouraged to review their processes in light of the new legislation.  The review should begin with whether the employer meets the threshold requirement to be bound by the law and then touch all areas of the hiring process: the application, interview, and hiring decision.  And importantly, what may be allowed at the state level may not be allowed at the local level.