In September, an Ordinance enacted in Prince George’s County, Maryland took effect to further restrict the ability of employers to conduct criminal background checks on applicants. Employers should be aware of this new “Ban the Box” law and similar laws sprouting across the U.S.
The Ordinance called “Access to Employment for Returning Citizens” (Bill CB-019-2024) amended the county’s Fair Criminal Record Screening Standards, and it now applies to employers with 10 or more full-time employees in the county, a reduction from 25 employees. The Ordinance states:
- An employer is prohibited from inquiring or considering conviction records of any applicant where the sentence was completed for a nonviolent felony, at least five years or 60 months ago; or for a misdemeanor, at least 30 months ago.
- An employer shall not inquire into or consider arrests that did not result in a conviction, except where the result was probation before judgement. In these cases, such outcomes shall be treated as misdemeanors.
- An employer shall not inquire or consider any arrest or conviction of an applicant for possession of marijuana or cannabis-related materials, provided any sentence for such crime has been completed, unless it was a conviction that included an intent to distribute.
The amended Ordinance is more restrictive than the Maryland statewide “Ban the Box” law, which permits employers to inquire about an applicant’s criminal history during the interview instead of only after the interview.
The amended Ordinance brings Prince George’s County to the same threshold as that of Montgomery County and the city of Baltimore. These Ordinances also contain the same restriction that limits employers from making inquiries until after the initial interview.
What Is “Ban the Box”?
“Ban the Box” laws may apply to public and private employers. These laws delay inquiries by employers into a job candidate’s potential criminal record until later in the hiring process. This delay allows job candidates to be evaluated based on their knowledge, skills, and abilities for a position rather than being prematurely excluded due to their criminal history.
To date, more than 150 cities and counties, plus 37 states, have adopted “Ban the Box” laws.
EEOC Guidance
In 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued its “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act” to address the application of Title VII of the Civil Rights Act which prohibits employment discrimination based on race, color, religion, sex and national origin.
The guidance “recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job-related for the position in question and consistent with business necessity.”
An estimated 77 million people in the United States – nearly one in three adults in America – have a prior arrest or conviction record. As a result, many states, counties, and cities have adopted “Ban the Box” policies.
Texas does not have a statewide “ban the box” law. In November 2023, Texas passed the “Death Star” bill, which makes it illegal for any city or county in the state to pass or enforce “ban the box” laws.