Ban the Box Trend Continues in Maryland, St. Louis

Author: David B. Weisenfeld, XpertHR Legal Editor

February 4, 2020

Maryland has become the 14th state with a ban the box law affecting private employers. A new law enacted last week applies to employers with at least 15 full-time employees and prohibits covered employers from requiring job applicants to disclose certain criminal history information, including arrests and convictions, before their first in-person interview.

Effective February 29, 2020, the law includes possible civil penalties of up to $300 for each applicant or employee whose criminal record an employer has asked about in violation of the law. The law also includes an anti-retaliation provision. Limited exceptions apply to:

  • Jobs providing services or direct care to minors or vulnerable adults; and
  • Positions where federal law requires an inquiry.

Gov. Larry Hogan had vetoed the bill over concerns that it did not differentiate between "serious, potentially violent, felony offenses and less serious misdemeanors." Waiting to ask about criminal history until a first in-person interview, he said, "would result in costly and time-consuming human resources work that ultimately goes nowhere." However, the General Assembly overrode Hogan's veto.

Employers should be aware that Baltimore has a ban the box law that goes well beyond Maryland's new law. Baltimore prohibits private employers with 10 or more employees from asking about an applicant's criminal history until a conditional job offer has been made. In addition, the state's two largest counties - Montgomery and Prince George's -- have ban the box laws.

Moving to the Midwest

St. Louis will soon become the third Missouri city with a ban the box law affecting private employers, joining Kansas City and Columbia.

Effective January 1, 2021, the St. Louis ordinance will ban employers with 10 or more employees from basing a hiring or promotional decision on an applicant's criminal history unless the employer can show the decision is based on all available information, including the frequency, recentness and severity of the criminal history. The applicant's criminal background also must be reasonably related to the job duties and responsibilities.

Other key provisions include prohibitions on:

  • Asking about an applicant's history until after the applicant has been deemed otherwise qualified for the position, and only after the applicant has been interviewed for the job (provided the same inquiry is made of all applicants);
  • Publishing job ads excluding applicants based on their criminal history;
  • Including statements that bar applicants based on their criminal history in job application forms and other employer generated forms; and
  • Seeking to obtain publicly available information concerning an applicant's criminal history.

The ban the box trend originated in the so-called "blue" states, but this marks the latest law limiting criminal history questions in a more conservative state. Some other cities to enact ban the box ordinances in such states in recent years include: