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New Challenges to Criminal Background Checks by Employers

“Ban the Box” laws already prevent employers in many Maryland local jurisdictions from checking an applicant’s criminal background in the early stages of the hiring process. A bill now pending in the Maryland legislature would take such protections much further – to prohibit any inquiry at all into a specified range of crimes.

Current Ban the Box laws prevent an employer from asking about an applicant’s criminal history on an employment application (i.e. by checking the “box” indicating a criminal record), as well as inquiring into that criminal history during part or all of the hiring process. For example, Baltimore City’s law permits an employer to review the criminal record of an applicant only after making a conditional offer of employment, while Montgomery County permits an employer to do so after the conclusion of the first interview.

The “shielding” bill now before the Maryland General Assembly, also known as the “Maryland Second Chance Act of 2015”, would authorize an individual to petition the court to shield certain convictions from employer scrutiny. To “shield” means to render a court record and police record relating to a conviction of a crime inaccessible by members of the public.

Indeed, the bill expressly states that, except as authorized under the legislation, an employer may not require a job applicant to disclose shielded information about criminal charges, nor may the employer discharge or refuse to hire a person solely because of a refusal to disclose such information. Moreover, the Maryland Judiciary Case Search may not in any way refer to the existence of specific records shielded in accordance with this bill. Finally, a custodian of criminal records must deny inspection of the criminal records and police records relating to the conviction of a crime that have been shielded under the Act.

The proposed legislation defines a “shieldable conviction” as any one of 12 crimes, including disorderly conduct, disturbing the peace, possessing certain controlled dangerous substances, and driving while the privilege is canceled or suspended. To be sure, the last conviction on that list would be of interest to employers who, for example, permit their employees to drive company cars, particularly before the employer hands over the keys.

For more information please contact Carolyn Mech at 410-583-2400 or mech@bowie-jensen.com.

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