Baltimore Businesses: Ban the Box or Jump in Jail!

By:  Paul M. Finamore, Esq.

Employers employing 10 or more full-time equivalent employees in the City of Baltimore beware: if you use criminal conviction information before making a conditional offer of employment, you risk criminal penalties under Baltimore City’s new Ban the Box legislation.  Accordingly, affected employers should remove any requests for information regarding criminal convictions or criminal accusations from their employment applications.

Passed in April by the Baltimore City Council, the Ban the Box legislation is laudable in its purpose.  Its intention is to remove artificial barriers to employment by ensuring that persons with criminal backgrounds, albeit convictions or charges, have fair access to gainful employment.  The legislation does not mandate that persons who have been convicted of crimes be awarded jobs over other applicants who are better qualified, nor does it guaranty employment for persons with criminal backgrounds.  The legislation allows applicants to submit their applications without fear of automatic rejection.  What the legislation purports to avoid is employers making decisions not to hire based on a completed application with a box checked on an application that indicates prior criminal history.  By permitting those with convictions to stand equally with other applicants, Ban the Box allows persons with convictions the opportunity to earn a conditional offer of employment based on their own merits.  Once the conditional offer of employment has been extended, then employers may review the criminal history of an applicant consistent with existing law on this topic. 

Baltimore’s Ban the Box legislation defines covered employers as those which employ 10 or more full-time equivalent employees in the City of Baltimore.  Under this definition, the legislation is not limited to employers physically located in the City, but rather includes all employers with the requisite 10 or more full-time equivalent employees working in the City.  This is an important distinction about which employers need to be aware.

Persons who believe that an employer has violated the legislation may file a complaint with the Baltimore Community Relations Commissions, which has the authority to award back pay, reinstatement, compensatory damages and attorney’s fees.  The legislation provides for judicial review in the Circuit Court for Baltimore City.  As with most anti-discrimination statutes, the Ban the Box legislation includes a provision for protection against retaliation for those reporting claimed violations.

Importantly, the legislation also provides for criminal penalties, including a fine of not more than $500 or imprisonment for not more than 90 days or both for each offense.  So, ironically, violation of the legislation may make you a beneficiary of the statutory protections!

With Mayor Stephanie Rawlings-Blake expected to sign the legislation, affected employers need to immediately update their employment applications to remove any references to criminal convictions or criminal accusations.

Paul Finamore (pmfinamore@nilesbarton.com) is a Partner at Niles Barton, & Wilmer LLP in Baltimore.  Mr. Finamore regularly counsels employers on employment issues, workplace policies, and compliance with federal, state, and local employment laws.

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