We have written extensively about Ban the Box, Fair Chance, and Clean Slate initiatives. Prince George’s County version takes effect within days and we thought we would go through it as an example of what we are talking about and the restrictions that are springing up. The Bill is titled “Employment Fairness Act for Returning Citizens.” Here are some of the provisions.
It applies to these entities:any person, individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity operating and doing business in the County that employs ten (10) or more persons full-time in the County. Employer includes the County government, but does not include the United States, any State, or any other 28 local government.
And what does it do? The first part deals with inquiries an entity defined above may not do.
(a) Inquiry on application. An Employer shall not require an Applicant or Potential Applicant to disclose on an employment application the existence or details of the Applicant’s or Potential Applicant’s Arrest Record or Conviction record.
(b) If the Employer is the County, then it is prohibited from making any inquiry into whether the Applicant or Potential Applicant has ever partaken in the consumption or use of Cannabis or Marijuana.
(c) Preliminary inquiry into Criminal Record. In connection with the proposed Employment of an Applicant, an Employer shall not, at any time until the conclusion of a first interview:
(1) require the Applicant to disclose whether the Applicant has an Arrest Record or Conviction Record, or otherwise has been accused of a crime;
2) conduct a Criminal Record check on the Applicant; or
(3) inquire of the Applicant or others about whether the Applicant has an Arrest or Conviction record or otherwise has been accused of a crime.
And while those are the inquiry prohibitions, the law goes further. It addresses what you cannot consider if you do get information.
(d) An Employer is prohibited at any time from inquiring into or considering convictions or Conviction Records of any Applicant for Employment where the Sentence of the Applicant was completed:
(1) for a nonviolent felony, at least five (5) years or sixty (60) months ago; or
(2) for a misdemeanor, at least thirty (30) months ago.
[(d)] (e) An employer shall not at any time inquire into or consider arrests of an applicant that did not result in a conviction, except where the result was probation before judgement. In cases that resulted in probation before judgement, such outcomes shall be treated as misdemeanors for the purposes of this Section.
[(e)] (f) An employer shall not at any time inquire into or consider any arrest or conviction of an applicant for possession of marijuana, cannabis, or cannabis-related materials or paraphernalia, provided any sentence for such crime has been completed, unless it was a conviction that included an intent to distribute.
[(f)] (g) An employer is prohibited from conducting background checks or investigations that 10 do not conform to the restrictions of this Section.
Finally, after the inquiry and consideration restrictions, what restrictions and requirements apply when you rescind the offer? That is addressed.
(a) In making an employment decision based on an Applicant’s Arrest Record or Conviction Record, an Employer shall conduct an individualized assessment, considering only specific offenses that may demonstrate unfitness to perform the duties of the position sought by the Applicant, the time elapsed since the specific offenses, and any evidence of inaccuracy in the record.
(b) If an Employer intends to rescind an offer of Employment based on an item or items in the Applicant’s Arrest or Conviction Record, before rescinding the offer of employment the Employer shall:
(1) provide the Applicant with a copy of any Criminal Record report;
(2) notify the Applicant, in writing, of the intention to rescind the offer of employment and the items that are the basis for the intention to rescind the offer of employment; and
(3) delay rescinding the offer of employment for seven (7) days to permit the Applicant to give the Employer notice of inaccuracy of an item or items on which the intention to rescind the offer of employment is based. The Applicant must receive in writing from the Employer his or her right under this provision.
(c) If an Employer decides to rescind an offer of employment based on the Arrest Record or Conviction Record of an Applicant, the Employer shall notify the Applicant of the rescission of the offer of employment in writing.
There are exemptions. They are:
(a) The prohibitions and requirements of this Subdivision shall not apply if the inquiries prohibited by this Subdivision are required or expressly authorized by an applicable Federal, State, or County law or regulation.
(b) The prohibitions and requirements of this Subdivision, with the exception of section 2-231.04 (b) of this Subdivision, shall not apply to any County public safety agencies or to positions in the public or private sector that, in the judgment of the County, have access to confidential or proprietary business or personal information, money or items of value, personal homes or residences, facilities that provide personal storage, or involve emergency management.
(c) The prohibitions of this Subdivision shall not apply to an employer that provides programs, services, or direct care to minors or Vulnerable Adults.
Was that a laborious read? (It was for us). Are we trying to make you an expert on one county out of 3500 or so? No. The issue is that versions of laws like this are here and expanding.
It is laborious and you do have to juggle multiple jurisdictions with their own versions and restrictions. Meanwhile, plaintiff attorneys in Prince George’s county don’t have to keep track of all you do—but they will read this law very carefully and know it well. The same goes for attorneys in other jurisdictions.
Believe us when we say we have our own regulatory hurdles to navigate, but we can still offer some empathy for your hurdles when inquiring, considering and, using the information you require.
We’re going to do more than empathize. Compliance is important. Stay tuned for announcement of a tool that will assist you in identifying and addressing laws like this new one from Prince George’s county in Maryland.
