['Recruiting and hiring']
['Negligent Hiring / Retention']
04/26/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Maryland, an employer/former employer may disclose to a prospective employer upon request of the prospective employer or employee/former employee information about employee/former employee job performance or reasons for termination, unless he/she is not acting in good faith.
An employer/former employer may disclose to a regulatory body upon request information about employee/former employee job performance or reasons for termination, unless he/she is not acting in good faith.
An employer/former employer may disclose information about employee/former employee job performance or reasons for termination, in a document or report required by law or regulation, unless he/she is not acting in good faith.
An employer may be liable for disclosures not made in good faith. Lack of good faith may be shown if the employer/former employer discloses:
- Information with malice, or
- False information intentionally or recklessly.
Arrest record inquiries
In Maryland, an employer may not require applicants to disclose expunged criminal information. A person is not required to disclose expunged criminal charges. Refusal to disclose may not be used as the only reason for discharging or refusing to hire a person.
Except for the above, both the EEOC and Maryland have no laws or regulations specifically prohibiting arrest record inquiries. However, the EEOC’s Notice N-915-061 says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
In Maryland, an employer may not require applicants to disclose expunged criminal information. A person is not required to disclose expunged convictions. Refusal to disclose may not be used as the only reason for discharging or refusing to hire a person.
Licensing agencies may consider the following before granting, denying, renewing, or revoking a license:
- Nature of crime,
- How crime relates to license activities,
- How the conviction relates to the fitness of person to perform activities,
- Other convictions,
- Time since conviction,
- Person’s behavior before and after the conviction.
Except for the above, both the EEOC and Maryland have no laws or regulations specifically prohibiting conviction record inquiries. However, the EEOC’s Notice N-915 says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII of the Civil Rights Act of 1964 as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964 in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
Arrest record inquiries
Maryland Commission on Human Relations
Conviction record inquiries
Maryland Commission on Human Relations
Regulations
Employer immunity from disclosure claims
Maryland Code 5-423, Same – Disclosure of information regarding employee or former employee
Arrest record inquiries
Maryland Code 10-109, Prohibited Acts
Conviction record inquiries
Maryland Code 10-109, Prohibited Acts
Code of Maryland Regulations 09.01.10.02, Standards
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.