Montgomery County Council Enacts Legislation Amending the County’s Ban the Box Law

Michael NearyMichael Neary

Well that happened fast. As discussed in my prior article, the Montgomery County Council was considering a bill to amend the County’s Ban the Box law first introduced in late July. Since mid-September, the Council was awaiting a report on the merits of the bill from the Health & Human Services and Public Safety Committees. The Council received that report on November 10 and promptly voted to pass the bill the same day. The County Executive signed the bill quickly thereafter on November 20. The amendments to the County’s Ban the Box law become effective on February 19, 2021.

The sole change to the draft bill recommended by the two committees was to prohibit employers from considering a conviction for a first offense of misdemeanor Second Degree Assault instead of the prior language prohibiting employers from considering a misdemeanor or felony Second Degree Assault conviction when making employment decisions.

During the November 10, 2020 hearing on the bill, two further changes to the draft legislation were approved by the Council. First, Council Member Jawando moved to amend the bill so that it would apply to any employer with one employee, even if part-time, in the County. Previously, the bill stated it applied if an employer had one full-time employee in the County. This amendment passed 9-0. Second, Council Member Albornoz moved to remove entirely a first conviction of Second Degree Assault from the list of offenses that an employer can never ask about. The expressed rationale behind this amendment was that a misdemeanor Second Degree Assault conviction often arises from a domestic violence offense. Council Member Albornoz’s amendment to the bill passed 5-4. The Council then voted to pass the amended bill 9-0.

As such, once the bill becomes effective, any employer employing one individual, even if part-time, in the County will have to comply with the mandates of the Ban the Box law. All such employers will have to wait until after the employer makes a conditional offer of employment before asking about criminal histories or running criminal background checks. Further, employers can no longer ask about or consider the following criminal offenses:

  1. Any arrest records that did not lead to a conviction;
  2. A first conviction for:
    a. Trespass; or
    b. Disturbing the peace.
  3. A conviction for a misdemeanor if at least three years have passed since:
    a. The date of conviction; and
    b. The date any period of incarceration for the misdemeanor has ended;
  4. Juvenile records deemed confidential by statute; or
  5. Convictions that have been expunged.

Employers also cannot inquire about these offenses when considering current employees for promotions.

The legislation delegates to the County Executive responsibility for preparing implementing regulations and regulations necessary to notify employees and employers of their rights and responsibilities under the legislation.

Employers in Montgomery County should act now to update their hiring processes to ensure compliance with the amendments to the County’s Ban the Box law before they go into effect on February 19, 2021.

For more information, contact Michael at 301-657-0740 or mjneary@lerchearly.com.