Criminal Background Checks: Delaware, Baltimore "Ban the Box"
Author: David B. Weisenfeld, XpertHR Legal Editor
May 14, 2014
Delaware and Baltimore, MD have passed measures limiting an employer's ability to make inquiries regarding an applicant's criminal history. Delaware has become the 12th state to enact a "ban the box" law with Governor Jack Markell signing the measure on May 8.
In addition, the Baltimore City Council has passed "ban the box" legislation that would apply not only to public employers, but to any private employer with 10 or more employees as well as employment agencies. "Ban the box" refers to laws eliminating the box often included on job applications that prospective employees are asked to check off if they have ever been convicted of a crime.
The Equal Employment Opportunity Commission (EEOC) has taken the position that criminal history questions should not be used as an automatic bar to employment. At a minimum, an employer should examine if it operates in any states or municipalities with "ban the box" laws.
New Delaware Law
Under a new law, public employers in Delaware will be prohibited from asking criminal history questions on job applications or until after a first interview has taken place. All state contractors are also encouraged to comply with the measure. Such voluntary compliance will be among the criteria evaluated when state contracts are awarded.
This new law goes a step further than most "ban the box" laws nationwide by including a provision that also bans public employers from asking about or considering an applicant's credit history either on an application or until after an initial interview.
The Delaware law does not apply to private employers and exempts jobs in the criminal justice arena, such as police and corrections officers. Four of the 12 states that restrict criminal history questions on job applications extend these laws to private employers, including:
- Hawaii;
- Massachusetts;
- Minnesota; and
- Rhode Island.
Baltimore Criminal History Measure
The Baltimore ordinance goes beyond job applications and precludes covered employers from asking about a prospective employee's criminal history until after a conditional job offer has been made.
Maryland enacted a similar law in 2013, but that law does not apply to private employers. The Baltimore measure passed despite the objections of the business community, which had lobbied for the ability to vet candidates' backgrounds earlier in the hiring process. Mayor Stephanie Rawlings-Blake has voiced support for the measure and is expected to sign it shortly. Limited exceptions are provided, such as for child care centers and employers that provide services for adults with special needs.
The Baltimore "ban the box" measure includes the potential of criminal penalties for employers that violate the law, including fines of $500 per violation and up to 90 days in prison. Baltimore would join Philadelphia, San Francisco and Seattle, among others, as cities with "ban the box" laws that apply to the private sector.
Taking Matters Into Their Own Hands
Some private employers have gone beyond what is required under the law and eliminated the criminal history box from their job applications altogether.
For instance, while the Minneapolis-based Target Corporation had to eliminate this box from its applications to comply with Minnesota law, it was under no obligation to do so in most other states. Nonetheless, Target rolled out a plan this year to eliminate criminal background questions from its employment applications nationwide. Meanwhile, the Illinois-based supermarket chain Jewel-Osco announced in March that it was removing criminal history questions from its job applications.