Employee Background Check Laws in Maryland

The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., is the primary federal law governing background checks and consumer reports. The FCRA applies to employers of all sizes nationwide and requires that before obtaining a consumer report (including a background check), the employer must: (1) disclose in writing that a background check may be obtained, (2) obtain the applicant's written authorization on a standalone document, and (3) provide a copy of the report and the applicant's rights under the FCRA.

If an employer intends to take adverse action based on the background check, the FCRA requires: (1) a pre-adverse action notice that includes a copy of the report and the applicant's FCRA rights, allowing time to dispute, and (2) a final adverse action notice after the applicant has had an opportunity to respond. The FCRA covers criminal history, credit history, employment history, education verification, and civil litigation records. The Federal Trade Commission (FTC) enforces the FCRA, and applicants can sue for damages if an employer violates these rules.

The FCRA does not prohibit inquiries into any category of criminal history, though state laws like Maryland add additional restrictions. Employers must ensure that any background check vendor they use complies with FCRA requirements, including proper handling and storage of reports.

Maryland law layers state-specific protections on top of FCRA requirements. Maryland Code, Commercial Law § 14-405 requires that before any background check is conducted, the employer must: (1) provide written notice that a background check will be obtained, and (2) obtain the applicant's written consent on a separate document. This is consistent with FCRA but explicitly codified in state statute.

Maryland Code, Commercial Law § 14-406 mandates specific pre-adverse action procedures. If an employer intends to deny employment based on a background check report, the employer must: (1) provide the applicant with a copy of the report, (2) inform the applicant of their right to dispute the accuracy of the report with the consumer reporting agency within a reasonable time (typically 5-7 business days), (3) allow adequate time for the applicant to respond and dispute, and (4) only after this process, provide a final adverse action notice if the employer still intends to deny employment.

Maryland Code, Criminal Law § 10-105 is a significant state-law addition that restricts employer inquiries into criminal history. Employers are prohibited from: (1) asking applicants about sealed or expunged criminal records, (2) considering sealed or expunged convictions as a basis for denial of employment, and (3) in most cases, asking about arrests that did not result in conviction. This is broader than federal FCRA protections, which do not restrict criminal history inquiries directly. The statute has narrow exceptions for certain positions (law enforcement, security, certain healthcare roles, and positions involving access to children), but even in those contexts, sealed records remain off-limits.

Maryland also has a "ban the box" component: employers may not inquire about criminal history on a job application; such inquiries must occur only after a conditional offer of employment (if at all). These protections apply to all employers doing business in Maryland, regardless of employee count. Remedies under Maryland law include civil claims for damages, attorney fees, and injunctive relief if an employer violates these provisions.

Maryland's criminal history restrictions contain several important exceptions. Positions in law enforcement, security services, corrections, and certain positions involving unsupervised access to children or vulnerable adults may be exempt from the restrictions on inquiring about criminal history. However, even in these excepted positions, sealed or expunged records remain protected and cannot be inquired about or considered.

Employers are permitted to conduct background checks for legitimate business purposes, including identity verification, employment history verification, education and credential verification, and credit checks where job-related (e.g., for positions involving financial responsibility). However, these checks must still comply with FCRA and Maryland law—written consent is required, and adverse action procedures must be followed.

Arrest records that resulted in acquittal or dismissal generally cannot be used as a basis for employment denial, though the statute permits some inquiry if directly job-related. Federal contractors and employers subject to federal bonding or security clearance requirements may have additional obligations that supersede state law in limited circumstances.

Small employers (those with fewer employees) are not exempt from Maryland background check law—the statute applies to all employers conducting business in Maryland. At-will employment principles do not override the requirement for written consent or pre-adverse action notice, as these are statutory mandates rather than at-will exceptions.

Consumer reporting agencies (background check vendors) bear responsibility for accuracy and compliance with FCRA and Maryland law. If a background check report contains inaccurate information, the applicant's remedy may lie against both the employer (for using the inaccurate information) and the reporting agency (for supplying it). Employers cannot delegate their obligation to provide notice and obtain consent to the background check vendor.

Step 1: Document everything. Keep all communications with the employer regarding the job application, any communications about background check procedures, dates you submitted applications, and any notices received about background checks or employment decisions. Save copies of any written consent forms you may have signed (or proof that you did not sign one), any pre-adverse action notices, and any final adverse action letters. Photograph or photograph emails, letters, or online interactions. Note the date, time, and content of any verbal discussions about background checks or employment decisions. This documentation is critical for proving a violation.

Step 2: Attempt internal resolution if feasible. If you have not yet been denied employment, request clarification from the employer's HR department about what background check will be run, whether written consent was properly obtained, and what your dispute rights are. If you have been denied employment, request a copy of the background check report (you are entitled to this under FCRA) and request written explanation of which information led to the denial. Ask the employer for the name and contact information of the consumer reporting agency that conducted the check. This step may not always be productive, but it creates a record and may resolve issues quickly.

Step 3: File a dispute with the consumer reporting agency. Contact the background check company (the reporting agency) directly and file a written dispute of any inaccurate information in the report. The agency must investigate your dispute within 30 days under FCRA and inform you of the results. Send this dispute by certified mail so you have proof of delivery. Simultaneously, send a written complaint to the employer (certified mail) detailing which information you dispute and requesting that the employer wait for the agency's investigation results before making a final employment decision.

Step 4: Understand the investigation process. The consumer reporting agency will contact the source of the disputed information and ask them to verify or correct it. If the source cannot verify the information, it must be removed. You will receive written notice of the results within 5-7 business days after the investigation concludes. If the information is removed or corrected, the agency must send you a corrected report. If the information is not corrected to your satisfaction, you have the right to add a consumer statement to your file explaining your dispute.

Step 5: Escalate to government agencies if the dispute is not resolved. If the consumer reporting agency does not properly investigate your dispute or if the employer violated consent or pre-adverse action procedures, file a complaint with the Federal Trade Commission (FTC) at reportidentitytheft.ftc.gov or by calling 1-877-438-4338. You can also file a complaint with the Maryland Attorney General's Consumer Protection Division at 410-576-6550 or marylandattorneygeneral.gov. If you believe the employer violated Maryland's criminal history protections (e.g., inquired about sealed records or denied employment based on a sealed conviction), file a complaint with the Maryland Attorney General as well.

Step 6: Consult an employment attorney if necessary. If the violation caused you actual damages (lost wages, emotional distress, costs of credit monitoring), or if multiple violations occurred, or if the employer is a large organization with deep pockets, consult an employment law attorney. Violations of the FCRA can result in statutory damages of $100-$1,000 per violation, plus actual damages, attorney fees, and court costs. Maryland law violations may also support civil claims for damages. Many employment attorneys offer free initial consultations and work on contingency. Contact the Maryland State Bar Association (410-685-7878) or the Baltimore Bar Association for referrals to employment law specialists.