Montgomery County, Maryland Fair Criminal Screening Standards Amendments

January 19th, 2021 | Angela Preston, Senior Vice President and Counsel, Corporate Ethics and Compliance with Ryan Hannan, Compliance Associate

On November 20, 2020, the Montgomery County Executive signed into law Bill 35-20 (the “Amendments”) to amend the county’s Fair Criminal Screening Standards Law (the “Ordinance”).

The Fair Criminal Screening Standards Law

The original ordinance, which took effect on January 1, 2015, was enacted to remove barriers to employment for individuals with criminal records, and reduce bias when considering applicants’ criminal history information by requiring employers to engage in the following practices:

• Delay inquiries about applicants’ criminal histories
• Conduct an individualized assessment when considering an applicant or employee’s criminal history, so as to only consider offenses that demonstrate unfitness to perform the duties of the position
• Identify the items forming the basis of a decision when notifying an applicant or employee of the intent to make an adverse employment decision or when rescinding an offer
• Wait 7 days between submitting a pre-adverse action notice and making a final decision to allow the applicant or employee an opportunity to dispute the accuracy of the item on which the intended decision is based and provide additional information.

Exemptions are provided for positions in which the prohibited actions or inquiries are authorized by state, federal, or county law, positions with the County Police Department, County Fire and Rescue Service, and County Department of Corrections and Rehabilitation, positions with employers providing programs, services, or direct care to minors or vulnerable adults, and positions requiring federal government security clearance.

November 2020 Amendments

The Amendments, effective February 19, 2021, modify existing language in addition to including new prohibitions. The original Ordinance permitted inquiries into applicants’ criminal history and the running of background checks after an initial interview, and the Amendments require that employers delay these until a conditional offer of employment has been extended. Also, notably for smaller employers, the definition of “Employer” is amended to include all entities employing 1 or more fulltime employees, reduced from the previous standard of 15.

New restrictions included in the Amendments prohibit employers from requiring disclosure, conducting background checks to determine, or otherwise inquiring about  arrests that resulted in non-convictions, and arrests, accusations, or convictions related to:

• First convictions for Trespass, Disturbance of the Peace, or Assault in the Second Degree under the Maryland Code
• Convictions of misdemeanors if 3 years have passed since the conviction date, and date that any period of incarceration concluded
• Matters for which records are confidential or have been expunged under the Maryland Code

The Amendments state that employers must not base hiring or promotion decisions on any of the above specified records. The Amendments further state that they County Executive must adopt regulations to implement the provisions of the new prohibitions, which are to include necessary information for prospective employees and employers of their rights and obligations.

Montgomery County employers should consult with their legal counsel regarding their practices for screening applicants and employees and considering their criminal histories. Employers should consider reviewing use of the specified offenses and recent misdemeanor convictions at the county level, given the new restrictions. Sterling clients should contact their account representative if they have questions or want to modify their screening program.

The full text of Bill 35-20 can be found here.

The Information contained herein is for informational purposes only. Sterling is not a law firm, and none of the information contained in this notice is intended as legal advice. Clients are encouraged to consult with their legal counsel about the impacts of any requirements. This and other important legislative updates can be found on the Sterling website:  https://www.sterlingcheck.com/resources/compliance-updates/

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.