Employers to See More Restrictions in the Hiring Process

Two recent developments in employment law further limit what employers can do in the hiring process. Maryland joins several states that "ban the box," which bans questions regarding criminal history in the initial stages of hiring, while the Court of Appeals for the Third Circuit lifted an injunction that previously froze Philadelphia’s prohibition on asking about an applicant’s salary history in the hiring process.

Maryland’s Ban the Box Law

On January 30, 2020, the Maryland General Assembly voted to override Governor Larry Hogan’s veto and enacted the "Criminal Record Screening Practices (Ban the Box)" Act (Act). As of January 1, 2020, employers who employ 15 or more full-time employees are now prohibited from requiring an applicant to disclose whether they have a criminal record or have had criminal accusations brought against them prior to their first in-person interview. However, an employer may, during the first in-person interview, ask whether the applicant has a criminal record or has had criminal accusations brought against them.

The Act does not apply to employers who provide "programs, services or direct care to minors or to vulnerable adults." The Act also does not "prohibit an employer from making an inquiry or taking other action that the employer is required to take or is expressly authorized to take by another applicable federal or state law."

By adopting this Act, Maryland joins 13 states and the District of Columbia with "ban the box" legislation that blocks private employers from asking a criminal history question in the initial stages of the hiring process, with some exceptions for safety-sensitive jobs. These 13 states include: California, Colorado, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

Moreover, according to the National Employment Law Project, 35 states and more than 150 cities that have adopted "ban the box" legislation that applies to public employers and employers holding public contracts, including the following:

Arizona (2017), California (2017, 2013, 2010), Colorado (2012), Connecticut (2016, 2010), Delaware (2014), Georgia (2015), Hawaii (1998), Illinois (2014, 2013), Indiana (2017), Kansas (2018), Kentucky (2017), Louisiana (2016), Maine (2019), Maryland (2013), Massachusetts (2010), Michigan (2018), Minnesota (2013, 2009), Missouri (2016), Nebraska (2014), Nevada (2017), New Jersey (2014), New Mexico (2010, 2019), New York (2015), North Dakota (2019), Ohio (2015), Oklahoma (2016), Oregon (2015), Pennsylvania (2017), Rhode Island (2013), Tennessee (2016), Utah (2017), Vermont (2016, 2015), Virginia (2015), Washington (2018), and Wisconsin (2016)

Philadelphia Ordinance Prohibiting Salary History Inquiries

The change in Maryland law falls squarely in line with actions that many cities and states have been taking to increase accessibility to the workplace, and to equalize the playing field for applicants. Recently, for example, the Court of Appeals for the Third Circuit lifted an injunction that banned the enforcement of a Philadelphia ordinance that prohibits an employer from asking about a prospective employee’s wage history and prohibits an employer from relying on wage history at any point in the process of setting or negotiating a prospective employee’s wage. See Greater Philadelphia Chamber of Commerce v. City of Philadelphia, et al., Nos. 18-2175 & 18-2176 (February 6, 2020).¹ Many other states have adopted similar bans on salary history questions including Massachusetts, California, Connecticut, Oregon, Vermont, and Hawaii.

Employers need to stay abreast of these developments and ensure that their employment applications and hiring processes avoid (or delay) questions relating to criminal history and salary history if they are in a state that has "banned the box" or otherwise restricted such inquiries.