New ordinances in Montgomery and Prince George’s Counties, Maryland, and Columbia, Missouri, limit an employer’s ability to inquire into an applicant’s criminal history. Employers should continue to be on the look out for new ban-the-box initiatives in the New Year as the list of localities considering such laws is expected to grow.

Montgomery County, MD

The Montgomery County ordinance becomes effective January 1, 2015. It covers employers who have at least 15 full-time employees and do business in the County including County government.. Federal, state and local governments are excluded. The ordinance does not apply to the County Police Department, the Department of Corrections and Rehabilitation, the County Fire and Rescue Service, or to employers who provide programs, services, or direct care to minors or vulnerable adults or are hiring for a position that requires a federal government security clearance.

Covered employers may not inquire about an applicant’s arrest or conviction record or conduct a background check or related inquiry regarding arrests or convictions, as those terms are defined, before the conclusion of a first interview. An interview is defined as any direct contact by the employer with the applicant, whether in person or by telephone or internet communication, to discuss the employment being sought or the applicant’s qualifications. Written correspondence, email, or direct contact made for the purpose of scheduling a discussion is not considered an interview. Additionally, the ordinance specifically defines applicant to include a current employee seeking a promotion.

The ordinance permits an employer: 

• to ask follow-up questions if the applicant voluntarily discloses criminal record information; 

• to make inquiries regarding an applicant’s employment history based on the application or resume; and 

• to make inquiries or take otherwise prohibited adverse actions if they are authorized by a federal, state, or county law or regulation. 

The ordinance also imposes procedural requirements if an employer wishes to disqualify an applicant, which may include an employee considered for promotion, based on criminal information. These requirements need to be integrated with the Fair Credit Reporting Act (FCRA) pre-adverse and adverse action requirements, as applicable. If an employer intends to rescind a conditional offer of employment, the ordinance requires the employer to undertake the following steps before taking adverse action: 

1. provide the applicant or employee with a copy of any criminal record report; 

2. notify the applicant or employee of the prospective adverse action and the items that are the basis for the prospective adverse action; and

3. delay rescission of the offer for seven days so that the applicant may provide notice of inaccuracy of the item or items supporting the employer’s rescission.

An employer taking adverse action against an applicant or employee based on an applicant’s criminal record must provide written notice of the decision.

To ensure individuals are not retaliated against, the ordinance has a strong prohibition against any form of retaliation for (1) opposing an employer’s violation of the ordinance or filing a complaint, testifying, assisting, or participating in a related investigation, proceeding, or hearing; or (2) obstructing or preventing enforcement or compliance with the ordinance. 

Any person aggrieved by an employer under the ordinance can file a complaint with the Executive Director of the County’s Office of Human Rights. Employers (except the County) are subject to civil penalties for violating the ordinance. 

Prince George’s County, MD

The Prince George’s County ordinance becomes effective January 20, 2015. It covers employers with at least 25 full-time employees in Prince George County, excluding federal, state and local governments. The ordinance does not apply to County public safety agencies, certain County jobs, or employers who provide programs, services, or direct care to minors or vulnerable adults. 

Employers are prohibited from including a criminal conviction inquiry on their application form and may not ask about an individual’s criminal history, such as by conducting a background check, or make related inquiries to the applicant or others, until after the first interview. An employer is permitted to make inquiries or take otherwise prohibited adverse actions that are expressly authorized by a federal, state, or county law.

As with the Montgomery County ordinance, the Prince George’s County ordinance imposes procedural requirements if an employer wishes to disqualify an applicant based on criminal information. An employer who intends to rescind an offer of employment must undertake the following steps before taking adverse action: 

1. provide the applicant with a copy of any criminal record report; 

2. notify the applicant of the item or items that are the basis for the employer’s intended rescission; and

3. delay rescission of the offer for seven days so that the applicant may provide notice of inaccuracy of the item or items supporting the employer’s rescission.

In making an employment decision based on an applicant’s criminal record, employers must first conduct an individualized assessment, considering only specific offenses that could demonstrate unfitness to perform the duties of the position for which the applicant applied or held, the time elapsed since the time of the offense(s), and any evidence of inaccuracy of the record.

An employer rescinding an offer of employment based on an applicant’s criminal record must notify the applicant in writing.

The anti-retaliation provisions are the same as those in the Montgomery County ordinance, prohibiting any form of retaliation for (1) opposing an employer’s violation of the ordinance or filing a complaint, testifying, assisting, or participating in a related investigation, proceeding, or hearing; or (2) obstructing or preventing enforcement or compliance with the ordinance. 

Also similar to the Montgomery County ordinance, a person aggrieved by an alleged violation of the ordinance can file a written complaint with the Executive Director of the County’s Human Relations Commission.

The Executive Director will promulgate rules and regulations regarding the implementation and administration of the ordinance, which are subject to approval by the County Council, within 60 days of the ordinance’s effective date.

Columbia, MO

Effective immediately, the Columbia, Missouri, ordinance, passed on December 1, 2014, limits inquiries into an applicant’s criminal history. 

An employer may not ask about an arrest, charge, or conviction until after making a conditional offer of employment. Exceptions to this prohibition include: (1) where law or regulation requires exclusion of an applicant convicted of a particular crime; (2) where a required fidelity or equivalent bond would exclude a person who was convicted of a particular crime; and (3) for employers of Emergency Medical Services (EMS) Systems Act-licensed individuals. In this regard, the ordinance recognizes the employer may need to advise the applicant that there are certain convictions that may disqualify someone from employment with the employer. For example, employers may include a question on the application or ask during an interview whether the applicant has ever been convicted of any offenses that would disqualify that person from obtaining required bonding.

Like many state laws and federal law and guidance, Columbia encourages employers not to automatically disqualify someone who has been convicted of a crime, but rather to conduct an individualized assessment and consider the severity and recentness of the crime and rehabilitation, and the duties and responsibilities of the position, among other things, before denying employment. However, unlike the Prince George’s County and Montgomery County ordinances, there is no specified time period, notice, or other requirements associated with this assessment.

An individual who believes his or her rights have been violated can bring a complaint with the local Commission within 180 days. The complaint will be investigated to decision. The maximum penalties under the ordinance are a $1,000 fine, imprisonment for 30 days, and a misdemeanor conviction.

Next Steps

Multi-state employers need to continue to monitor developments in this area if they intend to ask applicants about their conviction history. Application forms and conviction inquiries may require updating to conform with new laws. Employers also should review job descriptions and requirements carefully to determine whether any positions fall under any of the listed exceptions in these laws. Finally, employers should update offer letters, to clearly state the conditions for employment in addition to any post-offer conviction background check or inquiry.