Prince George’s County, MD, changes criminal background check law | Smaller

The County Council of Prince George’s, Maryland, recently passed bill CB-019-2024, which would amend the county’s fair criminal record check standards. Effective September 16, 2024, the regulation – renamed “Access to Employment for Returning Citizens” – significantly limits the ability of employers to conduct criminal background checks on job applicants. Changes to the law include a lower threshold for employer coverage, expanded limits on employer inquiries about applicants’ criminal histories, and expanded employee protections.

Threshold for employer coverage

The order now applies to employers with 10 or more full-time employees in the county, a reduction from the previous threshold of 25 employees.

Expanded restrictions on employer inquiries about applicants’ criminal history

Under the amended regulation, employers are prohibited from asking questions about or investigating an applicant’s criminal history until after the initial interview. Even after the initial interview, the employer cannot ask or take the following into account:

• Convictions for non-violent crimes: If the applicant served a sentence for a nonviolent felony more than five years (60 months) prior to submitting his or her application, such convictions cannot be considered.
• Misdemeanor convictions: Misdemeanor convictions cannot be considered if the sentence was served more than 30 months prior to the date of application.
• Arrests without conviction: Employers may not consider arrests that did not result in a conviction, regardless of age, except in cases of pre-judgment probation, which are treated as misdemeanors under the ordinance.
• Marijuana-related crimes: Arrests or convictions for possession of marijuana or cannabis-related paraphernalia cannot be considered provided the sentence has been served.

Advanced definitions

The amended regulation also contains broader definitions of key terms that further limit an employer’s ability to investigate and consider an applicant’s criminal history. The main changed conditions include:

• Arrest: This term now includes any arrest, detention, or detention by a law enforcement or military authority, even if no charges are ultimately filed.
• conviction: The term is expanded to include a verdict of guilty or a guilty plea, including nolo contendere.
• Non-violent crime: This term now includes any crime that does not meet the state’s definition of a violent crime.¹

Comparison with other local jurisdictions

Prince George’s County’s amended ordinance is more restrictive than Maryland’s statewide ban-the-box law, which allows employers to inquire about an applicant’s criminal history during the first interview, while the county’s ordinance only allows inquiries after the first Interview allows. Additionally, the county’s coverage threshold is lower than the state law, which applies to employers with 15 or more full-time employees. The amended order’s coverage threshold of 10 or more employees now puts Prince George’s County at the same threshold as the two other places in Maryland that have adopted prohibition orders: Montgomery County and Baltimore City. Similarly, these other two local ordinances contain the same restriction that prevents employers from making inquiries until after the initial interview.

Recommended action points for employers

Licensed employers in Maryland should update their criminal background check procedures to ensure compliance with these new restrictions. This includes ensuring that criminal history investigations of an applicant are postponed until after the initial hearing and comply with restrictions for nonviolent felonies, misdemeanors and arrests. Employers should not simply assume that they can lawfully consider a record in a background report because the regulation regulates employers, not background check companies. In other words, just because an employer sees a criminal record in a background report does not mean that the criminal record is permissible for the employer to use in the hiring process.

Footnotes

¹ A list of crimes classified as “violent” under Maryland law can be found here.