Expedited
Bill No.
~3=6~-1~4
_ _ _ __
Concerning: Human Rights and Civil
Liberties - Fair Criminal Record
Screening Standards
Revised: October 9.
2014
Draft No.
.Jl
Introduced:
July
15. 2014
Enacted:
October
28 2014
Executive:
November 10
2014
Effective:
Januarv
1. 2015
Sunset Date: __,_,No=n=e'-----,..--
Ch.
~.
Laws
of Mont. Co.
2014
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Councilmembers Eirich, Branson and Navarro, Council President Rice, and Councilmember
Riemer
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 employmentlJ
the
conclusion of a
first
interview;
(2)
require certain employers to provide prior notice to an applicant [[or employeelJ
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
(S)JI generally regulate the use of
criminal
records in the hiring process by certain
employers.
By amending
Montgomery County Code
Chapter 27, Human Rights and Civil Liberties
Sections 27-7 and 27-8
By adding
Montgomery County Code
Chapter 27, Human Rights and Civil Liberties
Article XII, Fair Criminal Record Screening Standards
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
• • •
Heading or defined term.
Added
to
existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment
Deletedfrom existing law or the bill by amendment.
Existing law unqffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
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EXPEDITED BILL NO. 36-14
1
Sec. 1.
Sections 27-7 and 27-8 are amended and Chapter 27, Article
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3
XII is added as follows:
27-7.
(a)
Administration and enforcement.
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
4
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7
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)
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the particulars of the alleged violation;
the name and address of the person alleged to have committed the
violation; and
(2)
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(3)
any other information required by law or regulation.
*
(f)
(1)
*
*
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Initial determination, dismissal before hearing.
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)
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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)
(B)
dismiss the complaint without a hearing;
order the Director to investigate further; or
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ExPEDIIED BILL
No.
36-14
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(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] Xl, or Xll, 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/or complainant.
After finding a violation
of this Article or Articles X[[,]] [or] or Xl,
[[.Qr
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)
*
*
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financial losses resulting from the discriminatory act or a
violation of [Article] [[Articles]] Article X
[[m:
XII]]; and
*
(2)
*
*
equitable relief to prevent the discrimination or the violation of
Articles X[(,]] [or] or Xl,
[[m:
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
[[.Qr
Xll]] or higher housing costs from housing discrimination,
for up to 2 years after the violation, not exceeding the actual
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ExPED!1ED BILL No. 36-14
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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 pwposes of this Article or
Articles X[[,.]] [or] or XI,
[[Qr
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
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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:
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*
(E)
*
*
for each violation of Article XII.
!ill
to $1,000;
for any other violation, $500.
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ID
27-70
*
Enforcement.
*
*
*
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*
ARTICLE XII.
27-71.
*
Fair Criminal Record Screening Standards.
Findings and Purpose; Definitions.
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W
Findings.
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ill
The U.S. Department of Justice's Bureau of Justice Statistics
(BJS) estimates that over 92 million Americans, roughly one in
three adults, have
~
criminal history record involving an arrest or
conviction.
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ExpED!IED BILL No. 36-14
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ill
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.
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ill
Studies indicate that job applicants are often precluded from even
getting an interview when applications require disclosure of
whether the applicant
has
g criminal record.
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ill
Lack of employment is g significant
~
of recidivism, which
threatens public safety and disrupts the financial and general
stability of affected families and communities.
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ill
Increased government expenditures on law enforcement and
social programs, necessitated
]2y
the inability of people with
criminal records
to
find gainful employment, are an impediment
to the County reaching its potential for economic growth.
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®
ill
Increasing employment of people with criminal records improves
public safety and reduces the financial burden on government.
In 2012. the United States Equal Employment Onportunity
Commission (EEOC) issued enforcement guidance regarfeg
employers' use of criminal background infoanation in making
employment-related decisions. recommending that the use of
such information is job related and consistent with business
necessity.
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(hl
Purpose.
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It is the purpose of this Article to:
ill
assist in the successful reintegration into the workforce of people
with criminal records
]2y
removing imoroper barriers to
employment; and
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EXPEDITED BILL No. 36-14
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m
{£}
enhance the health and safety of the community
ID'.
assisting
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people with criminal records to lawfully provide for themselves
and their families.
Definitions.
As used in this Article:
[[Adverse action
means to fail or refuse to hire, to discharge or not
promote
~
person, or to limit, segregate, or classify employees in any
~
way which would deprive
person of employment opportunities or
otherwise adversely affect the person's employment status.])
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Applicant
means
~
person who is considered or who requests to be
considered for employment in the County
ID'.
an employer or a current
~
employee who requests to be considered for a promotion.
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Arrest record
means information indicating that
person
has
been
apprehended, detained, taken into custody, held for investigation, or
otherwise restrained
ID'.
~
law enforcement agency or military authority
due to an accusation or suspicion that the person committed a crime.
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Conditional offer
means an offer of employment or an offer of a
promotion that is conditioned solely on:
ill
ill
the results of the employer's later mgwry into the
applicant's criminal record; or
another contingency expressly communicated to the
applicant at the time of the offer.
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Conviction record
means information regarding
!!
sentence arising from
~
verdict or plea of guilty or nolo contendre, including
~
sentence of
incarceration,
~
fine, a suspended sentence, and
~
sentence of probation.
Criminal record report
means
~
record of
~
person's arrest and
conviction history obtained from any source.
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ExPEDITED BILL
No. 36-14
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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
ID:
an employer in the County.
Employer
means any person, individual, proprietorship, partnership,
joint venture, comoration. limited liability company, trust, association,
or other entity operating and doing business in the County that employs
[[10)] 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.
Employment
means:
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ill
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any work for compensation; and
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 Inauire
does not include:
ill
a question about an applicant's conviction record or arrest
record when the existence of the record is voluntarily
disclosed
by
the aoolicant: or
ill
a question about an aoolicant's employment historv shown
on the application or the applicant's resume.
Interview
means
anv
direct contact by the employer with the aoolicant.
whether in person or by telephone or internet communication. to
discuss:
ill
ill
the employment being sought: or
the applicant's qualifications.
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ExPEDIJED BILL ND. 36-14
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Interview
does not include:
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ill
ill
written correspondence or email: or
direct contact made for the purpose of scheduling a
discussion.
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Vulnerable adult
means an adult who lacks the physical or mental capacity
to
provide for his or her own daily needs.
27-72.
(fil
Prohibited Inquiries; Retaliation.
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.
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®
Preliminary inquiry into criminal record.
In
connection with the
proposed employment of an applicant, an employer must not, at any
time before
[@
conditional offer of employment is made]] the
conclusion of a first interview:
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ill
require the applicant to disclose whether the applicant has an
arrest record or conviction record, or otherwise has been accused
of!! crime;
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ru
ill
conduct a criminal record check on the wplicant; or
inquire of the applicant or others about whether the applicant has
an arrest record or conviction record or otherwise has been
accused of!! crime.
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(£}
Retaliation.
An
employer must not:
ill
retaliate against any person for:
(A)
lawfully opposing any violation of this Article;
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EXPEDIJFD BILL NO. 36-14
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(ID
filing
l!
complaint, testifying, assisting, or participating in
any manner in an investigation, proceeding, or hearing
under this Article; or
ill
27-73.
obstruct or prevent enforcement or compliance with this Article.
[[Employment decisions; adverse actionsJ] Rescission of a
conditional offer based
2!!
criminal record.
(lU
[[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
)2y
the applicant or held
)2y
the employee, the time
elapsed since the specific offenses, and any evidence of inaccuracy in
the record.
(hl]]
If
an employer intends to [[base an adverse action]) rescind a
conditional offer based on an item or items in the applicant's
[[m:
employee's]) arrest record or conviction record, before [[taking the
adverse action]) rescinding the conditional offer the employer must:
ill
ill
provide the applicant
[[m:
employee]] with
l!
£QI?Y
of any criminal
record report; [[and])
notify the applicant
[[m:
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
m
delay rescinding the conditional offer for 7 days to permit the
aoolicant to give the employer notice of inaccuracy of an item or
items on which the intention to rescind the conditional offer is
based_
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ExPEPITED BILL NO. 36-14
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27-74.
[[(sill]
[l!lill]
[[If. within
I
days after the employer provides the notice required
in subsection
.{hl
to the applicantJl
[[m:
employee,]) [[the applicant]]
[[m:
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]][[;.
ill)]
[[delay]] [[the adverse action]) [[rescinding the conditional offer
for
J!
reasonable period after receiving the information])[[; and
ill
reconsider the prospective adverse action in
.light
of the
information])
[[J]
[[(d)])
[1!£)]]
[[Within
I
days after]) [[taking
final
adverse action]] [[rescinding
the conditional offer]]
(hl
If
an
emplover decides to rescind a conditional offer based on the arrest
record or conviction record of an applicant
[[QI
employee)]. [[an]] the
employer must notify the applicant
[[QI
employeel] of the
[[final
adverse actionl) rescission of the conditional offer in writing.
[[@))(£1
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.
Exemptions.
(!!}
The prohibitions and requirements of this Article do not
l!PPlv
if the
inquiries
[[QI
adverse actions]] prohibited
ID:
this Article are expressly
authorized
ID:
an applicable federal, State, or County law or regulation.
ili}
The prohibitions and requirements of this Article do not
l!PPlv
to
the
County Police Department. the County Fire and Rescue Service. or the
County Department of Corrections and Rehabilitation.
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ExPEDIIED BILL No. 36-14
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(£}
The prohibitions and requirements of this Article do not
fil1lliy
to an
employer that provides programs, services, or direct care to minors or
vulnerable adults.
(ill
The prohibitions and requirements of this Article do not anoly to an
employer hiring for a position that requires a federal government
security clearance.
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27-75.
Enforcement.
A person aggrieved
ID:
an alleged violation of this Article
may
file~
complaint
with the Director under Section 27-7.
Sec. 2.
Exoedited Effective Date.
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248
The Coµpcil declares that this legislation 1s necessarv for the immediate
protection of the public interest. This Act takes effect on January
1, 2015.
Approved:
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Approved:
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-id
f
fiid
This is a correct copy ofCouncil action.
255
~7h-~
Linda M.
Lauer,
Clerk of the Council
• 11 -