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Montgomery County, Maryland Bans the Box and More

By Michael Klazema on 12/24/2014

The comprehensive law places other restrictions and requirements on employers. The new law goes into effect January 1, 2015.

The Montgomery law applies to private employers doing business in the County, employing 15 or more full-time employees in the County. Individuals engaged in vocational or educational training, with or without compensation, are considered employees.  Current employees seeking promotion with an employer in the County qualify as “applicants” under the law. This also applies to the County government employers.

Beginning in 2015, employers must not conduct a background check or make inquiries about, or require an applicant to disclose, any arrest or conviction records, or any other accusations of a crime made against the applicant, before the conclusion of a first interview. However, the ordinance does permit inquiries into an applicant’s criminal record if the applicant voluntarily discloses the existence of the record. In addition, an employer does not make an inquiry under the law when asking a question about an applicant’s employment history shown on the application or on the applicant’s resume.
Exceptions to the law apply:

  1. When the employer provides programs, services, or direct care to minors or vulnerable adults;
  2. If the employer is required by a federal, state, or county law or regulation to make an inquiry into criminal history; and
  3. To positions involving public safety or those that require a federal government security clearance

The notice obligations under the Montgomery law are slightly different from those required under the Fair Credit Reporting Act (FCRA). Before rescinding a conditional offer of employment based on an applicant’s arrest or conviction record, the employer must:

  1. Provide the applicant with a copy of the criminal record report;
  2. Notify the applicant of its intention to rescind the conditional offer;
  3. Notify the applicant of the items that are the basis for the intention to rescind the conditional offer; and
  4. Delay rescinding the conditional offer for 7 days (instead of 5 business days under the Federal Trade Commission staff’s opinion of the FCRA) so the applicant can furnish “notice of evidence of the inaccuracy of any item or items on which the intention to rescind the offer is based.”

If an employer decides to rescind a conditional offer after considering the evidence of inaccuracy provided by an applicant, the employer must notify the applicant of the rescission in writing.

The County Human Rights Commission is responsible for handling complaints of violations under the law. The Commission may assess penalties of up to $1,000 for each violation.

Go here to view the Montgomery County Expedited Bill No. 36-14: http://www.montgomerycountymd.gov/COUNCIL/Resources/Files/bill/2014/20141028_36-14.pdf

What this update means for you:

  • Montgomery County, Maryland has made it illegal to inquire about criminal history prior to the conclusion of the first interview (with some exceptions).
  • You should determine whether you have employees in Montgomery County, Maryland.
  • If you have employees in Montgomery County, Maryland, review your employment application and the timing of your background checks with your lawyer.

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