Montgomery County’s Ban the Box Law Is Becoming More Restrictive

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Effective February 19, 2021, Montgomery County’s Ban-the-Box law is becoming far more restrictive and will apply to all employers – not just those with 15 or more employees.

As employers with employees in Montgomery County, Maryland should know, Montgomery County had previously enacted a Ban-the-Box law that prohibited inquiries about an applicant’s arrest or conviction record until the end of the first interview. (The “Box” refers to the box, contained on many employment applications, that must be checked if the applicant has a criminal record.) This law has now been amended, with expansive new protections for applicants and employees of all Montgomery County employers.

Employers will now be able to ask about convictions only after a conditional offer of employment has been made. In addition, employers cannot ask about, or base a hiring or promotion decision on:

  • Arrests that did not result in conviction (previously, employers could ask about and rely on arrests)
  • A first conviction of trespass, disturbance of the peace, or assault in the second degree
  • Any misdemeanor conviction where at least three years have passed since the date of the conviction and the date of any period of incarceration
  • A confidential juvenile record or an expunged record

The law permits applicants to disclose criminal record information voluntarily prior to a conditional offer, but the amendments clarify that such disclosure cannot be made in response to an employer’s question.

Under the already existing law, employers must make an individualized assessment based on specified criteria when making an employment decision based on a conviction record, and they must provide prior notice to an applicant when rescinding a conditional job offer based on a prior conviction. In addition, there are exemptions to the current and the amended restrictions for:

  • Employers who are authorized to request arrest and/or conviction information under law
  • Certain County agencies (Police, Fire and Rescue, Department of Corrections and Rehabilitation)
  • Employers providing programs, services or direct care to minors or vulnerable adults
  • Employers hiring for positions requiring federal government security clearance

An applicant or employee may file a complaint with the County Office of Human Rights. Employers found to have violated the law may be required to pay up to $1000 civil penalty for each violation. The County will issue regulations to implement these changes.

Notably, this law is far more restrictive than Maryland’s Ban-the-Box law, which took effect in February 2020. As we discussed in our January 31, 2020 E-lert, the state law, similar to the prior Montgomery law, prohibits employers with 15 or more employees from asking about an applicant’s criminal record until the first interview. The state law did not preempt any local laws, which exist not only in Montgomery County, but also Baltimore City and Prince George’s County. None of these other laws go as far as Montgomery County’s amended law, however, particularly with regard to the limitations on inquiries about first convictions or misdemeanor convictions.