On November 20, 2020, the Montgomery County, Maryland Council approved amendments to its 2014 “ban-the-box” legislation.  The original legislation (Bill 36-14) prohibited employers with 15 or more full-time employees in Montgomery County from conducting a criminal background check of a job applicant, or otherwise inquiring about the criminal or arrest history of an applicant, prior to the completion of a first interview.  Bill 35-20 expands the scope of the previous legislation by prohibiting background checks until after a conditional job offer has been extended, and redefining “employer” to include any employer with one or more full-time employees in Montgomery County.

The key changes to Montgomery County’s ban-the-box law are as follows:

• Timing of criminal record inquiry: Permitted only after a conditional offer of employment is extended to the applicant.

• Prohibited inquiries:  Employers may not inquire into whether:
  

  • The applicant has been arrested for a matter that did not result in a conviction;

  • The applicant has a first conviction for trespass, disturbing the peace, or misdemeanor assault in the second degree; or

  • The applicant has a misdemeanor conviction, if at least three years have passed since the date of conviction and the date that any period of incarceration for the misdemeanor ended.

• Definition of “employer”:  The amendments redefine employer as “any person, individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity operating and doing business in the County that employs 1 or more persons full-time in the County. Employer includes the County government, but does not include the United States, any State, or any other local government.”

Other Maryland Jurisdictions

Notably, Bill 35-20 is more restrictive than Maryland’s statewide ban-the-box law, which took effect on February 29, 2020.  The statewide legislation currently applies to employers with 15 or more full-time employees and permits an employer to inquire about criminal history during the first interview.  Montgomery County is one of three jurisdictions in Maryland where the ban-the-box law is more restrictive than the state law, the other two being Prince George’s County and Baltimore City. 

Prince George’s County’s ban-the-box regulation applies to employers with 25 full-time employees and prohibits inquiries into arrest or conviction records until after the first interview.  In addition, covered employers in Prince George’s County must provide pre-adverse action and final adverse action notices to prospective employees when the employer intends to withdraw a conditional offer of employment based on the prospective employee’s criminal history.

Baltimore City’s ban-the-box ordinance prohibits employers from inquiring into a prospective employee’s criminal history until after the employer makes a conditional offer of employment.  The ordinance applies to private employers with at least 10 full-time-equivalent employees in the City of Baltimore.

The new legislation goes into effect on February 19, 2021.  In advance of the effective date, Montgomery County employers should remove questions about criminal history from their job applications if they have not done so already, and revise their hiring procedures to delay any inquiry about criminal history until after a conditional job offer has been extended.