photo of press conference for 'Ban the Box' legislation

Council Takes Up ‘Ban the Box’ Legislation (Video)

A bill that would defer the point at which certain Montgomery County public and private employers can conduct criminal background checks or otherwise inquire into an applicant’s criminal record until after making a conditional offer of employment was introduced before the County Council on July 15. At a news event following the Council session, Councilmembers Marc Elrich, Cherri Branson and Nancy Navarro—the chief sponsors of the “Ban the Box” legislation—and Councilmember Hans Riemer provided details of proposed Bill 36-14.

Bill 36-14 aims to help eliminate one barrier to jobs which makes it very difficult for adults with arrests or convictions to find work. The bill would also require certain employers to provide prior notice to an applicant or employee when basing an adverse action concerning the applicant’s or employee’s employment on the applicant’s or employee’s criminal record.

Council President Craig Rice and Councilmember Riemer are co-sponsors of the bill, which is tentatively scheduled to be the focus of a public hearing on Tuesday, Sept. 9.

Among the speakers at the event on July 15 to show support of the bill was James Stowe, director of the County’s Office of Human Rights. That office would be responsible for enforcement of the law. Other speakers included Maryland State Delegate Tom Hucker; Stefan LoBuglio of the County Department of Correction and Rehabilitation; Yolanda Tully of Montgomery Works; Elbridge James of the Montgomery County unit of the NAACP; Katie Ashmore of the Jews United for Justice; Zorayda Moreira-Smith of CASA of Maryland; and Caryn York of the Job Opportunity Task Force.
The bill would remove one of the barriers to employment facing persons with criminal records by prohibiting inquiry by certain prospective employers into job applicants’ criminal history early in the hiring process. Similar policies or laws have been adopted or enacted in several state and local jurisdictions, most recently, the City of Baltimore in May of this year.

These laws are known as “ban the box” laws, a reference to the prohibition on the use of a check-box on job applications indicating whether or not the applicant has a criminal record.
The movement to “ban the box” began with Hawaii in 1998, and there are now 11 states and more than 50 local jurisdictions that have adopted some form of “ban the box” legislation. Over the past two years, six states—including Maryland—have passed some type of ban the box legislation. There is substantial variance in the legislation of the different jurisdictions, but all reflect the view that the question of a job applicant’s criminal history should be deferred until later in the hiring process and not be utilized as an automatic bar to employment.

The majority of the laws, including the State of Maryland’s law, apply only to public or government employers, but 18 of the local jurisdictions with “ban the box” policies have gone somewhat further and apply the restrictions to private contractors doing business with the respective jurisdictions. Going further still, five states and six local jurisdictions have approved banned the box measures for private employers.

The states that have approved ban the box legislation for public and private employers are Illinois, Massachusetts, Minnesota, Hawaii and Rhode Island. The local jurisdictions that have approved ban the box legislation applicable to both public and private sector employees are Baltimore, Buffalo, Newark, Philadelphia, San Francisco and Seattle. The District of Columbia is now considering such a bill.

“We cannot afford to perpetuate practices that make it impossible for people who have made mistakes and have paid for those mistakes to re-enter the community with the prospect of finding a job and becoming a productive member of society,” said Councilmember Elrich. “People can—and do—redeem themselves. By having these unnecessary barriers to employment, we condemn former offenders and their families to poverty and struggle. This bill will help provide a way to fully reintegrate people into our communities.”

Councilmember Branson said: “This bill represents our commitment to provide an opportunity for a second chance for those who have paid their debt to society and encourages employers to look at the whole person instead of merely one box on an employment application. If we can re-integrate these men and women back into society, we not only reduce recidivism, we also make this County a safer place and may reduce some of our social service costs.”

Councilmember Navarro said: “This legislation is an important step toward the goal of rehabilitation and redemption for people who have served their time. Finding gainful employment is one of the most significant barriers faced by those trying to reenter society and start their lives over. As Americans, we pride ourselves on the notion of giving those who have made mistakes a second chance. This bill is consistent with that value we hold dear.”

Bill 36-14 would prohibit an employer in the County from inquiring into, or otherwise actively obtaining the criminal history of an applicant for a job in the County before making a conditional offer of employment. Consistent with EEOC guidance, it also would require the employer, in making an employment decision about an applicant or employee based on the applicant’s or employee’s arrest or conviction record, to conduct an individualized assessment, considering:

  • Only specific offenses that may demonstrate unfitness to perform the duties of the position sought by the applicant or held by the employee.
  • The time elapsed since the specific offenses.
  • Any evidence of inaccuracy in the record.

The bill would require an employer deciding to base an adverse action on an applicant’s arrest or conviction record to:

  • Provide the applicant or employee with a copy of any criminal record report.
  • Notify the applicant or employee of the prospective adverse action and the items that are the basis for the prospective adverse action.

If, within seven days of receiving the required notice of prospective adverse action, the applicant or employee gives the employer notice of evidence of the inaccuracy of any item or items on which the prospective adverse action is based, the bill would require the employer to:

  • Delay the adverse action for a reasonable period after receiving the information.
  • Reconsider the prospective adverse action in light of the information.

The bill does not prohibit the employer from taking adverse action. The bill would require an employer to give an applicant or employee written notice of a final adverse action within seven days of taking the action.

Bill 36-14 exempts from its provisions inquiries or adverse actions expressly authorized by an applicable federal, State, or County law or regulation, as well as the County Department of Police, the County Department of Corrections and Rehabilitation and employers providing programs, services or direct care to minors or vulnerable adults.

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