Despite a veto from the governor, the proponents of so-called “ban the box” laws vowed to continue fighting. The attempt by state lawmakers earlier this year to enact a “ban the box” law that would forbid private employers from asking prospective employees about their criminal history on employment applications was stymied when Republican Governor Larry Hogan vetoed the proposed legislation.
“The plan is to override the governor’s veto,” Democratic state senator Jill Carter, one of the bill’s sponsors in the Maryland Senate, said via email. A representative for Democratic Delegate Nick Mosby, one of the bill’s sponsors in the Maryland House of Delegates, indicated that Mosby intends to reintroduce the bill. Maryland’s legislature is not currently in session. The General Assembly meets for 90 days each year at the beginning of the year.
The measure, “Criminal Record Screen Practices (Ban the Box)” passed both legislative bodies in the Maryland General Assembly with wide margins. It would have applied to private employers with 15 or more employees.
“Hiring the right team is one of the most critical activities a business does. Employers have the right, and often the need, to know the criminal history of applicants they may hire,” Hogan wrote in a veto letter. “Senate Bill 839/House Bill 994 prohibits businesses from requiring an applicant to disclose this important information until the first in-person interview. This would result in costly and time-consuming human resources work that ultimately goes nowhere.”
By forbidding an employer from requiring their criminal history until the first in-person interview, the governor wrote, the bill would force businesses to pay for background checks or refer to “incomplete, inaccurate, or outdated online criminal history websites,” adding “tremendous costs” to businesses but yielding no positive impact on job opportunities for those with a criminal history, he wrote.
In addition, Hogan said, the bill “contains dangerous preemption language” that allows for more restrictive laws in each of Maryland’s counties and municipalities, resulting in a “patchwork of different laws” across the state where businesses operating in Maryland would have to “attempt to navigate the intricacies of each set of rules.”
The Maryland Chamber of Commerce also had reservations about the bill, but for different reasons. While the bill was under consideration, the Chamber asked the state committee to which the bill was assigned to give it an “unfavorable report,” according to a copy of the organization’s March 5, 2019 testimony sent via email by the organization’s vice president of government affairs, Ashley Duckman.
Noting that the intent behind the bill is reasonable, the Chamber criticized the “punitive nature” of the bill’s enforcement provisions. Employers who violated its requirements would have faced an “escalating fine up to $1,000 with no allowance for an inadvertent error or a requirement of deliberate intent,” the state’s Chamber of Commerce noted in saying that it could not support the bill as written.
“Employers often say that the most important decision they make is hiring their staff. When hiring a new employee, employers take on a significant amount of risk. One of the risks they should not be concerned with is court action against them by the Attorney General, and civil penalties, for inadvertent error,” the organization wrote in the letter.
Maryland does have “ban the box” requirements in certain types of hiring and in certain locales. According to the Baltimore Sun, “ban the box” legislation for state government employees was enacted in 2013. The following year, Baltimore passed legislation restricting employers with 10 or more workers from asking a candidate about criminal records until after a conditional employment offer is made, the Sun has reported. Montgomery County and Prince George’s County also have their own ban the box laws.
Employee background screening — including the use of credit checks, driving records and inquiries into criminal history — is a common part of the hiring process. “Ban the Box” or “fair chance hiring” is a nationwide movement arguing that jobseekers who have a criminal history are hampered in their quest for employment by having to “check the box” on the employment application that asks if the applicant has ever been convicted of a crime.
The campaign has been criticized by industry groups such as the National Retail Federation and the New Jersey Chamber of Commerce and the National Federation for Independent Business (NFIB). In a 2017 blog post, the advocacy organization for small businesses said “ban the box” laws place employers in a bind – a business may face a potential lawsuit if it rescinds an offer because of an applicant’s criminal record while it can face potential legal liability in hiring an employee with a record.
Advocates of the Maryland bill say it is crucial for former inmates who struggle to find jobs.
“Once convicted of a crime, a person finds that his access to housing, bank credit and education drops dramatically. Studies show that callbacks and job offers are reduced by half for applicants with a criminal record and that nearly 60 percent of individuals with criminal records remain unemployed one year after release,” David Trone, a Democrat who represents Maryland’s 6th Congressional District in the House and the former president of Bethesda, Md.-based Total Wine & More, wrote.
Trone also said that Total Wine & More was one of the first national businesses to remove the question from employment applications and has hired more than 100 “returning citizens.” “It was a great decision for the company and the employees,” he wrote, adding that returning citizens working at Total Wine are reliable and had 14% better retention rates. He said he has heard similar stories from top executives whose companies stopped asking for criminal histories on job applications.
States and cities take action
Currently, 35 states and over 150 cities and counties have enacted “ban the box” legislation, according to NELP.
New Mexico is the latest state to enact a ban the box law. Gov. Michelle Lujan Grisham signed the bipartisan “Criminal Offender Employment Act” on April 3, 2019. The law prohibits private employers in the state from asking job applicants about their arrest or conviction history on the job application. Employers may still ask about a job applicant’s criminal record during interviews. The legislation does not prevent employers from making a contingent offer and does not restrict employers from conducting background checks on applicants. The private sector measure went into effect on June 14, 2019.
Government employers in New Mexico have been forbidden from asking about prior criminal history on job applications since 2010.
Federal action on “Ban the Box”
There is no federal law forbidding employers from asking about prior criminal history. Earlier this year, Maryland Democratic representative Elijah E. Cummings reintroduced a bill, the Fair Chance Act, that would prohibit federal agencies and federal contractors from requesting that an applicant for employment disclose criminal history record information before the applicant has received a conditional offer of employment.
However, the federal agency charged with enforcing federal laws dealing with workplace discrimination, the U.S. Equal Employment Opportunity Commission, has issued guidelines on hiring those with a criminal history in which it warns that use of an individual’s criminal history can, in some instances, violate Title VII of the Civil Rights Act of 1964’s prohibition against employment discrimination.
This article is intended only for informational purposes. It is not a substitute for legal consultation. While we attempt to keep the information covered timely and accurate, laws and regulations are subject to change.