Expedited Bill No. 36-14
Concerning: Human Rights and Civil Liberties – Fair Criminal Record Screening Standards
Revised: October 9, 2014 Draft No. 6
Introduced: July 15, 2014
Enacted: October 28, 2014
Executive: November 10, 2014
Effective: January 1, 2015
Sunset Date: None
Ch. 36 , Laws of Mont. Co. 2014
For Montgomery County, Maryland
AN EXPEDITED ACT to:
(1) prohibit certain employers from conducting a criminal background check or otherwise inquiring into an applicant’s criminal record before [[making a conditional offer of employment]] the conclusion of a first interview;
(2) require certain employers to provide prior notice to an applicant [[or employee]] when [[taking an adverse action concerning the applicant’s or employee’s employment]] rescinding a conditional offer;
(3) provide for enforcement by the Office of Human Rights and the Human Rights Commission; and
(4) [[authorize the Human Rights Commission to award certain relief; and
(5)]] generally regulate the use of criminal records in the hiring process by certain employers.
Montgomery County Code
Chapter 27, Human Rights and Civil Liberties
Sections 27-7 and 27-8
Montgomery County Code
Chapter 27, Human Rights and Civil Liberties
Article XII, Fair Criminal Record Screening Standards
Sec. 1. Sections 27-7 and 27-8 are amended and Chapter 27, Article XII is added as follows:
27-7. Administration and enforcement.
(a) Filing complaints. Any person subjected to a discriminatory act or practice in violation of this Article, or any group or person seeking to enforce this Article or Articles X, [or] XI, or XII, may file with the Director a written complaint, sworn to or affirmed under the penalties of perjury, that must state:
(1) the particulars of the alleged violation;
(2) the name and address of the person alleged to have committed the violation; and
(3) any other information required by law or regulation.
* * *
(f) Initial determination, dismissal before hearing.
(1) The Director must determine, based on the investigation, whether reasonable grounds exist to believe that a violation of this Article or Articles X, [or] XI, or XII, occurred and promptly send the determination to the complainant and the respondent.
(2) If the Director determines that there are no reasonable grounds to believe a violation occurred, and the complainant appeals the determination to the Commission within 30 days after the Director sends the determination to the complainant, the Director promptly must certify the complaint to the Commission. The Commission must appoint a case review board to consider the appeal. The board may hear oral argument and must:
(A) dismiss the complaint without a hearing;
(B) order the Director to investigate further; or
(C) set the matter for a hearing by a hearing examiner or the board itself, and consider and decide the complaint in the same manner as if the Director had found reasonable grounds to believe that a violation of this Article or Articles X, [or] XI, or XII, occurred.
(3) If the Director determines that there are reasonable grounds to believe a violation occurred, the Director must attempt to conciliate the matter under subsection (g).
* * *
27-8. Penalties and relief.
(a) Damages and other relief for complainant. After finding a violation of this Article or Articles X[[,]] [or] or XI, [[or XII,]] the case review board may order the payment of damages (other than punitive damages) and any other relief that the law and the facts warrant, such as:
(1) compensation for:
* * *
(F) financial losses resulting from the discriminatory act or a violation of [Article] [[Articles]] Article X [[or XII]]; and
* * *
(2) equitable relief to prevent the discrimination or the violation of Articles X[[,]] [or] or XI, [[or XII,]] and otherwise effectuate the purposes of this Chapter;
(3) consequential damages, such as lost wages from employment discrimination or a violation of [Article] [[Articles]] Article X [[or XII]] or higher housing costs from housing discrimination, for up to 2 years after the violation, not exceeding the actual difference in expenses or benefits that the complainant realized while seeking to mitigate the consequences of the violation (such as income from alternate employment or unemployment compensation following employment discrimination); and
(4) any other relief that furthers the purposes of this Article or Articles X[[,]] [or] or XI, [[or XII,]] or is necessary to eliminate the effects of any discrimination prohibited under this Article.
(b) Civil penalties.
(1) In addition to any damages awarded to any person under this [[article]] Article, the case review board may require any person, except the County, who has violated this [[article]] Article or Article XII to pay to the County as a civil penalty:
* * *
(E) for each violation of Article XII, up to $1,000;
(F) for any other violation, $500.
* * *
* * *
ARTICLE XII. Fair Criminal Record Screening Standards.
27-71. Findings and Purpose; Definitions.
(1) The U.S. Department of Justice’s Bureau of Justice Statistics (BJS) estimates that over 92 million Americans, roughly one in three adults, have a criminal history record involving an arrest or conviction.
(2) According to the BJS, nearly 700,000 people a year return to their communities from incarceration, and many are job seekers who are ready and able to become part of the work force.
(3) Studies indicate that job applicants are often precluded from even getting an interview when applications require disclosure of whether the applicant has a criminal record.
(4) Lack of employment is a significant cause of recidivism, which threatens public safety and disrupts the financial and general stability of affected families and communities.
(5) Increased government expenditures on law enforcement and social programs, necessitated by the inability of people with criminal records to find gainful employment, are an impediment to the County reaching its potential for economic growth.
(6) Increasing employment of people with criminal records improves public safety and reduces the financial burden on government.
(7) In 2012, the United States Equal Employment Opportunity Commission (EEOC) issued enforcement guidance regarding employers’ use of criminal background information in making employment-related decisions, recommending that the use of such information is job related and consistent with business necessity.
It is the purpose of this Article to:
(1) assist in the successful reintegration into the workforce of people with criminal records by removing improper barriers to employment; and
(2) enhance the health and safety of the community by assisting people with criminal records to lawfully provide for themselves and their families.
(c) Definitions. As used in this Article:
[[Adverse action means to fail or refuse to hire, to discharge or not promote a person, or to limit, segregate, or classify employees in any way which would deprive a person of employment opportunities or otherwise adversely affect the person’s employment status.]]
Applicant means a person who is considered or who requests to be considered for employment in the County by an employer or a current employee who requests to be considered for a promotion.
Arrest record means information indicating that a person has been apprehended, detained, taken into custody, held for investigation, or otherwise restrained by a law enforcement agency or military authority due to an accusation or suspicion that the person committed a crime.
Conditional offer means an offer of employment or an offer of a promotion that is conditioned solely on:
(1) the results of the employer’s later inquiry into the applicant’s criminal record; or
(2) another contingency expressly communicated to the applicant at the time of the offer.
Conviction record means information regarding a sentence arising from a verdict or plea of guilty or nolo contendre, including a sentence of incarceration, a fine, a suspended sentence, and a sentence of probation.
Criminal record report means a record of a person’s arrest and conviction history obtained from any source.
Director means the Executive Director of the Office of Human Rights and includes the Executive Director’s designee.
Employee means a person permitted or instructed to work or be present by an employer in the County.
Employer means 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 [] 15 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 local government.
(1) any work for compensation; and
(2) any form of vocational or educational training, with or without compensation.
Inquiry or Inquire means any direct or indirect conduct intended to gather information, using any mode of communication.
Inquiry or Inquire does not include:
(1) a question about an applicant’s conviction record or arrest record when the existence of the record is voluntarily disclosed by the applicant; or
(2) a question about an applicant’s employment history shown on the application or the applicant’s resume.
Interview means any direct contact by the employer with the applicant, whether in person or by telephone or internet communication, to discuss:
(1) the employment being sought; or
(2) the applicant’s qualifications.
Interview does not include:
(1) written correspondence or email; or
(2) direct contact made for the purpose of scheduling a discussion.
Vulnerable adult means an adult who lacks the physical or mental capacity to provide for his or her own daily needs.
27-72. Prohibited Inquiries; Retaliation.
(a) Inquiry on application. An employer must 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) Preliminary inquiry into criminal record. In connection with the proposed employment of an applicant, an employer must not, at any time before [[a conditional offer of employment is made]] 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 record or conviction record or otherwise has been accused of a crime.
(c) Retaliation. An employer must not:
(1) retaliate against any person for:
(A) lawfully opposing any violation of this Article;
(B) filing a complaint, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under this Article; or
(2) obstruct or prevent enforcement or compliance with this Article.
27-73. [[Employment decisions; adverse actions]] Rescission of a conditional offer based on criminal record.
(a) [[In making an employment decision based on an applicant’s or employee’s arrest record or conviction record, an employer must 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, and any evidence of inaccuracy in the record.
(b)]] If an employer intends to [[base an adverse action]] rescind a conditional offer based on an item or items in the applicant’s [[or employee’s]] arrest record or conviction record, before [[taking the adverse action]] rescinding the conditional offer the employer must:
(1) provide the applicant [[or employee]] with a copy of any criminal record report; [[and]]
(2) notify the applicant [[or employee]] of the [[prospective adverse action]] intention to rescind the conditional offer and the items that are the basis for the [[prospective adverse action]] intention to rescind the conditional offer; and
(3) delay rescinding the conditional offer for 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 conditional offer is based.
[[(c)]][[(b)]] [[If, within 7 days after the employer provides the notice required in subsection (b) to the applicant]] [[or employee,]] [[the applicant]] [[or employee]] [[gives the employer notice of evidence of the inaccuracy of any item or items on which the]] [[prospective adverse action]] [[intention to rescind the conditional offer is based, the employer must]][[:
(1)]] [[delay]] [[the adverse action]] [[rescinding the conditional offer for a reasonable period after receiving the information]][[; and
(2) reconsider the prospective adverse action in light of the information]][[.]]
[[(d)]][[(c)]] [[Within 7 days after]] [[taking final adverse action]] [[rescinding the conditional offer]]
(b) If an employer decides to rescind a conditional offer based on the arrest record or conviction record of an applicant [[or employee]], [[an]] the employer must notify the applicant [[or employee]] of the [[final adverse action]] rescission of the conditional offer in writing.
[[(d)]](c) Except as provided in this Section regarding the rescission of a conditional offer, nothing in this Article requires an employer to give notice to an applicant of any action of the employer or the basis for any action.
(a) The prohibitions and requirements of this Article do not apply if the inquiries [[or adverse actions]] prohibited by this Article are expressly authorized by an applicable federal, State, or County law or regulation.
(b) The prohibitions and requirements of this Article do not apply to the County Police Department, the County Fire and Rescue Service, or the County Department of Corrections and Rehabilitation.
(c) The prohibitions and requirements of this Article do not apply to an employer that provides programs, services, or direct care to minors or vulnerable adults.
(d) The prohibitions and requirements of this Article do not apply to an employer hiring for a position that requires a federal government security clearance.
A person aggrieved by an alleged violation of this Article may file a complaint with the Director under Section 27-7.
Sec. 2. Expedited Effective Date.
The Council declares that this legislation is necessary for the immediate protection of the public interest. This Act takes effect on January 1, 2015.