Ban the Box Laws in Maryland: Criminal History in Hiring

Federal law does not prohibit employers from asking about criminal history, but the Equal Employment Opportunity Commission (EEOC) has issued guidance stating that blanket exclusions based on criminal convictions may violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, if they have a disparate impact on protected classes. The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, requires employers using third-party background check companies to follow specific procedures, including providing notice and opportunity to dispute findings.

Federal law also does not mandate ban-the-box protections; these are state-level initiatives. However, federal contractors are subject to Office of Federal Contract Compliance Programs (OFCCP) regulations that discourage blanket criminal history policies. The EEOC enforces compliance through the charge filing process, with a 180-day filing deadline in non-deferral states and 300 days in deferral states like Maryland. Remedies include back pay, front pay, compensatory damages, and attorney fees.

Maryland's ban the box law, codified at Maryland Code, Human Services Article § 19-701 et seq., is significantly stronger than federal baseline protections. The law explicitly prohibits employers from inquiring about or considering criminal history until after a conditional job offer has been extended. This applies to most private employers with more than five employees and all public agencies in Maryland.

Under Maryland law, employers cannot ask about criminal history on job applications, during interviews, or in background checks before the conditional offer stage. Once a conditional offer is made, employers may inquire about criminal history but must conduct an individualized assessment under Maryland Code § 19-712. This assessment must evaluate whether a conviction is directly related to the specific job duties and consider factors such as the nature of the offense, time elapsed, rehabilitation evidence, and job requirements.

Maryland's law covers categories beyond what federal law explicitly protects. While federal EEOC guidance focuses on disparate impact, Maryland's statute creates a bright-line rule: no inquiries until after conditional offer. Employers cannot automatically disqualify candidates based on conviction records without this individualized assessment. Smaller employers with five or fewer employees are exempt from Maryland's ban the box requirements.

Remedies under Maryland law include civil liability, damages for violations, and potential fines. An employer who violates the law may face attorney fees and litigation costs. The state's Attorney General can also bring enforcement actions. Maryland's law is broader than many states because it covers both public and private employers and includes the mandatory individualized assessment requirement, not just the timing restriction.

Maryland's ban the box law contains several important exceptions. Employers with five or fewer employees are not covered by the statute. Positions involving work with vulnerable populations, including children, elderly individuals, or disabled persons, may have different requirements; employers in these sectors should consult specific statutory carve-outs and licensing requirements.

Positions requiring security clearances or involving national security may fall outside the scope of the law, as federal law preempts state restrictions in certain contexts. Law enforcement and correctional facilities may have different rules under separate statutes addressing public safety positions. Positions bonded by the Maryland Surety Board may also have carve-outs.

The law does not prevent employers from asking about whether an applicant is legally authorized to work or from inquiring about other background information unrelated to criminal history. Employers may conduct background checks after conditional offer; the restriction applies to timing and process, not substance. If an applicant voluntarily discloses criminal history before a conditional offer, employers should document that the applicant, not the employer, initiated the discussion.

An employer may still make an adverse decision based on criminal history if the individualized assessment demonstrates direct job-relatedness and business necessity. Failure to conduct this assessment, however, constitutes a violation. Additionally, sealed, expunged, or pardoned convictions may have special status under Maryland law, and inquiries about those records may be prohibited entirely depending on the nature of the relief.

Step 1: Document Everything. Keep records of all communications related to your job application, including the job posting, application form, interview notes or recordings, and any communications about timing of background check requests. Save screenshots of the application showing what questions were asked and when. Document the date of any in-person or phone interview and what questions were asked about criminal history. If you received a conditional job offer, note the date and in writing what made it 'conditional.' If criminal history was asked before an offer, note the exact date and method (application form, phone call, interview).

Step 2: Internal Complaint Process. Contact the employer's HR department in writing (email preferred) and explain that you were asked about criminal history before receiving a conditional job offer, which violates Maryland law. Keep a copy of this complaint and note the date sent and recipient name. Request a written response acknowledging receipt. This creates a paper trail and gives the employer notice. Request an explanation for why the question was asked and when. Some employers may correct the violation at this stage; others will not respond, which strengthens a later legal claim.

Step 3: File with Maryland State Agency. Contact the Maryland Attorney General's Civil Rights Division or the Maryland Human Rights Commission (now merged into the MD Commission on Civil Rights). File a complaint within one year of the violation date. Provide your name, contact information, employer name and address, date of violation, detailed description of when criminal history was asked, proof of conditional offer (or absence of one), and copies of your documentation. The Maryland Attorney General's office email is available on the official state website. Include request for investigation and damages. Federal EEOC filing is optional since Maryland law covers the violation; however, you may file with EEOC as well for Title VII disparate impact claims if the employer's policy affected a protected class. Federal deadline is 300 days from violation in Maryland (deferral state).

Step 4: Investigation Process. Expect the Maryland Attorney General's office to contact you within 30-60 days to confirm complaint details. They will request additional documentation and may contact the employer. The employer will be given opportunity to respond. Investigation typically takes 60-120 days. You may be asked to provide witness statements, copies of the job posting, and evidence that other candidates were asked or not asked about criminal history. The agency will review whether the timing was before or after conditional offer and whether individualized assessment occurred. They will determine if violation occurred and recommend resolution.

Step 5: Consult an Attorney. If the agency investigation does not result in satisfactory resolution, consult an employment lawyer licensed in Maryland. Seek an attorney specializing in discrimination and ban-the-box violations. Bring all documentation from Steps 1-4. An attorney can file a civil lawsuit against the employer for damages including compensatory damages, punitive damages in egregious cases, and attorney fees under Maryland law. Many employment attorneys work on contingency for strong cases. If the violation prevented you from getting the job, damages may include lost wages and benefits. Attorney consultation is recommended before Step 3 if you believe the violation is serious or part of a pattern.