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Montgomery County Passes “Ban the Box” Legislation Prohibiting Inquiries About Criminal Convictions Before Conclusion of First Interview

In a relatively below-the-radar manner, Montgomery County has enacted the “Fair Criminal Record Screening Standards Act” (the “Act”), prohibiting most private employers, as well as the County government itself, from inquiring about criminal arrests or convictions before the conclusion of a first interview. This prohibition applies to both applicants for initial hire and promotions of current active employees. The Act went into effect on January 1, 2015.

Often referred to as “ban the box” legislation (referring to the box appearing on many job applications inquiring about criminal arrests and convictions), this Montgomery County law prohibits employers from requiring an applicant or potential applicant to disclose on an employment application the existence or details of his or her arrest or conviction record. According the Act, an “applicant” is any person who is considered, or requests to be considered, for employment in the county, including a current employee who requests to be considered for a promotion. In a nutshell, prior to the conclusion of a first interview, Montgomery County employers are prohibited from requiring any criminal background disclosure, conducting a criminal record check, or inquiring of the applicant or others about whether the applicant has an arrest or conviction record or otherwise has been accused of a crime.

While an employer may not try to gather (directly or indirectly) criminal background information, the employer may ask questions about an applicant’s criminal or arrest record when the applicant voluntarily discloses its existence. After the conclusion of the first interview, the Act permits employers to inquire about an applicant’s criminal arrest or conviction records. However, if an employer makes a conditional offer, and then intends to rescind the offer based on the applicant’s arrest or conviction record, the employer will be subject to certain additional notice and other requirements, similar to those currently required under the federal Fair Credit Reporting Act. Specifically, prior to rescinding the offer, the employer must first:

  1. provide the applicant with a copy of any criminal record report that formed the basis of the decision to take the adverse action;

  2. notify the applicant of the employer’s intention to rescind the offer, and identify the items on the criminal record report that form the basis for its intention; and

  3. delay rescinding the offer for seven days to permit the applicant to give the employer notice of inaccuracy of the item(s) on which the intention to rescind is based.

If, at the end of the seven-day period, the employer still intends to take the adverse action, it must notify the applicant of the rescission in writing.

The Act in its present form is relatively toothless. An aggrieved individual Act may file an administrative complaint with the Executive Director of the County’s Office of Human Rights; however, the only remedy is a fine for each violation of up to $1,000, payable to the County as a civil penalty.   Nevertheless, covered employers (those employers who employ 15 or more full time employees) would be well advised to remove the “box” from all job applications and train employees with regard to the Acts requirements.

Marc Smith