Preemployment Inquiries Law Summaries

Preemployment Inquiries Law Summaries

Maryland, Preemployment Inquiries Law Summaries

There are several laws in Maryland pertaining to criminal background checks in employment. Personnel employed at child and family day care facilities are required to undergo a criminal history check prior to employment (Title 5, Subtitle 5, Secs. 5-561-5-563). The law relating to facilities caring for and supervising children and adult care programs is at Title 5, Subtitle 6, Sec. 5-619. Adult dependent care programs are required to apply for a state criminal history check on all eligible employees (Title 19, Subtitle 19, Secs. 19-1902 and 19-1904).

Public and private employers or educational institutions are prohibited from requiring an applicant for employment or admission to disclose information concerning criminal charges against him or her that have been expunged (Art. 27, Sec. 740). The full text of these laws is available beginning at Employment Practices Guide ¶21-23,600.01 .

Maryland's job reference liability law is located in the Courts and Judicial Proceedings Article.

References are to the Annotated Code of Maryland.

WHAT THE EMPLOYER MUST DO

Background checks.-Child and family day care facilities.- An employee and employer in a facility identified in Title 5, Subtitle 5, Sec. 5-561(b) below must apply for a national and state criminal history records check at any designated law enforcement office in Maryland (Title 5, Subtitle 5, Sec. 5-561(a), as amended by H. 145, L. 2001, effective October 1, 2001).

The following facilities must require employees and employers to obtain a criminal history records check (Title 5, Subtitle 5, Sec. 5-561(b), as amended by H. 145, L. 2001, effective October 1, 2001):

1. a child care center required to be licensed under Part VII of this subtitle;

2. a family day care home required to be registered under Part V of this subtitle;

3. a child care home required to be licensed under this subtitle or under Article 83C of the Code;

4. a child care institution required to be licensed under this subtitle or under Article 83C of the Code;

5. a juvenile detention, correction, or treatment facility;

6. a public school;

7. a private or nonpublic school required to report annually to the State Board of Education;

8. a foster care family home or group facility;

9. a recreation center or recreation program operated by state or local government primarily serving minors; or

10. a day or residential camp primarily serving minors.

An employer at a facility described just above may require a volunteer at the facility to obtain a criminal history records check (Title 5, Subtitle 5, Sec. 5-561(d), as amended by Ch. 521 (S. 152), L. 2007, effective October 1, 2007).

A local department of social services may require a volunteer of that department who works with children to obtain a criminal history records check (Title 5, Subtitle 5, Sec. 5-561(e), as amended by Ch. 521 (S. 152), L. 2007, effective October 1, 2007).

An employer at a facility not identified above who employs individuals to work with children may require employees, including volunteers, to obtain a criminal history records check (Title 5, Subtitle 5, Sec. 5-561(f), as amended by Ch. 521 (S. 152), L. 2007, effective October 1, 2007).

An employer (see definition just below) shall require an employee (includes a person who participates in a pool described in Sec. 5-560(e)(2); for compensation will be employed on a substitute or temporary basis to work in a facility identified in Sec. 5-561(b)(1) or (2) above; and will care for or supervise children in the facility or will have access to children whoa re cared for or supervised in the facility) to obtain a criminal history records check under this Part VI of this subtitle (Title 5, Subtitle 5, Sec. 5-560(d)(2) and Sec. 5-561(g), as amended by Ch. 521 (S. 152), L. 2007, effective October 1, 2007).

For purposes of Secs. 5-561(g), 5-563(b)(1), 5-564(a)(2)(I) and (d)(1)(I) and (2), and Sec. 5-567 of this subtitle, “employer” includes a child care resource and referral center, an association of registered family day care providers, and an association of licensed child care centers to the extent that the center or association establishes and maintains a pool of individuals who are qualified to work as substitute or temporary employees in a facility identified in Sec. 5-561(b)(1) or (2) of this subtitle (Sec. 5-560(e)(2), as amended by H. 145, L. 2001, effective October 1, 2001).

Except as provided in paragraph (2) of this subsection, a person who is required to have a criminal history records check under this Part VI of this subtitle shall pay for (Title 5, Subtitle 5, Sec. 5-561(h), as amended by Ch. 521 (S. 152), L. 2007, effective October 1, 2007):

1. the mandatory processing fee required by the FBI for a national criminal history records check;

2. reasonable administrative costs to the Department, not to exceed 10% of the processing fee; and

3. the fee authorized under Sec. 10-221(b)(7) of the Criminal Procedure Article for access to Maryland criminal history records.

A volunteer under subsection (d), (e), or (f) of this section who volunteers for a program that is registered with the Maryland Mentoring Partnership is not required to pay for costs or fees under paragraph (1)(II) and (III) of this subsection (Title 5, Subtitle 5, Sec. 5-561(h)(2), as added by Ch. 521 (S. 152), L. 2007, effective October 1, 2007).

An employer or other party may pay for the costs borne by the employee or other individual described just above (Title 5, Subtitle 5, Sec. 5-561(i), as amended by Ch. 521 (S. 152), L. 2007, effective October 1, 2007).

On or before the first day of actual employment, an employee must apply to the department for a printed statement. On or before the first day of actual operation of a facility identified above, an employer must apply to the department for a printed statement (Title 5, Subtitle 5, Sec. 5-562(a), as amended by Ch. 284 (S. 527), L. 2000, effective October 1, 2000).

The requirement that a complete set of legible fingerprints taken on standard fingerprint cards be submitted as part of the application for a criminal history records check may be waived if (Title 5, Subtitle 5, Sec. 5-562(c), as amended by Ch. 284 (S. 527), L. 2000, effective October 1, 2000):

1. the application is submitted by a person who has attempted to have a complete set of fingerprints taken on at least three occasions;

2. the taking of a complete set of legible fingerprints is not possible because of a physical or medical condition of the person's fingers or hands;

3. the person submits documentation satisfactory to the department of the requirements of this subsection; and

4. the person submits the other information required for a criminal history records check.

The department or its designee must mail an acknowledged receipt of the application with a sworn statement or affirmation from an employee to the employer within three days of the application. The department or its designee must mail an acknowledged receipt of the application with a sworn statement or affirmation from an employer to the appropriate state or local agency, within three days of the application (Title 5, Subtitle 5, Sec. 5-563(b)(1), as amended by Ch. 284 (S. 527), L. 2000, effective October 1, 2000).

Nonpublic school employees.- A nonpublic school that is subject to the requirements of this title may not hire or retain any employee who works with or has access to students and who the school knows has been convicted of a crime involving (Article-Education, Sec. 2-206.1, as added by Ch. 235 (S. 111), L. 2006, effective July 1, 2006):

1. an offense under Sec. 3-307 of the Criminal Law Article;

2. child sexual abuse under Sec. 3-602 of the Criminal Law Article, or an offense under the laws of another state that would constitute child sexual abuse under Sec. 3-602 of the Criminal Law Article if committed in Maryland; or

3. a crime of violence as defined in Sec. 14-101 of the Criminal Law Article, or an offense under the laws of another state that would be a violation of Sec. 14-101 of the Criminal Law Article if committed in Maryland.

County boards of education.- Effective October 1, 2008, a county board of education may not knowingly hire or retain any individual who has been convicted of a crime involving items (1) through (3) just above (Article-Education, Sec. 6-113, as amended by Ch. 289 (H. 652), L. 2008, effective October 1, 2008).

Facilities caring for and supervising children/adult dependent care programs.- The following persons or agencies are immune from civil or criminal liability in connection with the conducting of a criminal background investigation as described above or a criminal history records check under Title 19, Subtitle 18 of the Health-General Article (Title 5, Subtitle 6, Sec. 5-619(a)):

1. An employer that in good faith relies on a criminal background investigation or criminal history records check to deny or terminate an individual's employment or participation in a facility;

2. A state or local agency that in good faith relies on a criminal background investigation or criminal history records check of an employer to grant, deny, suspend, or revoke licensure, registration, approval, or certification of a facility;

3. A state or local agency that in good faith participates in the making of a criminal background investigation or criminal history records check of an employee or employer.

The failure of an employer to require a criminal background investigation of an individual when not required as described above or a criminal history records check when not required under Title 19, Subtitle 18 of the Health-General Article may not give rise to civil or criminal liability on the part of the employer for failure to conduct a criminal background investigation (Title 5, Subtitle 6, Sec. 5-619(b)).

Adult dependent care programs.- Before an eligible employee may begin work for an adult dependent care program, each such program must, for each eligible employee (Title 19, Subtitle 19, Sec. 19-1902(a), as amended by Ch. 69 (S. 312), L. 2000, effective October 1, 2000):

1. Apply for a state criminal history records check or request a private agency to conduct a background check; and

2. Request a reference from the potential employee's most recent employer.

The reference request required under item (2) just above must, at a minimum, seek information about any history of physical abuse on the part of the potential employee (Title 19, Subtitle 19, Sec. 19-1902(b), as amended by Ch. 69 (S. 312), L. 2000, effective October 1, 2000).

An adult dependent care program must pay for each eligible employee (Title 19, Subtitle 19, Sec. 19-1902(c), as amended by Ch. 69 (S. 312), L. 2000, effective October 1, 2000):

1. a state criminal history records check; or

2. A private agency background check.

If an adult dependent care program requests a private agency to conduct a background check, the private agency must conduct a check in each state in which the program knows or has reason to know the eligible employee worked or lived during the past seven years (Title 19, Subtitle 19, Sec. 19-1902(d), as amended by Ch. 69 (S. 312), L. 2000, effective October 1, 2000).

As part of the application for a state criminal history records check to be conducted by the department, an eligible employee must submit to the Adult Dependent Care Program (Title 19, Subtitle 19, Sec. 19-1904(a), as amended by Ch. 69 (S. 312), L. 2000, effective October 1, 2000):

1. Except as provided in Title 19, Subtitle 19, Sec. 19-1902(c) below, a complete set of legible fingerprints taken on forms specified by the Director of the Criminal Justice Information System Central Repository; and

2. The disclosure statement required under Title 19, Subtitle 19, Sec. 19-1905.

The Adult Dependent Care Program must submit the fingerprints, disclosure statement, and payment for the costs of the criminal history records check (Title 19, Subtitle 19, Sec. 19-1904(b), as amended by Ch. 69 (S. 312), L. 2000, effective October 1, 2000).

The requirement that a complete set of legible fingerprints taken on forms specified by the Director of the Criminal Justice Information System Central Repository be submitted as part of the application for a criminal history records check may be waived if (Title 19, Subtitle 19, Sec. 19-1904(c), as amended by Ch. 69 (S. 312), L. 2000, effective October 1, 2000):

1. The eligible employee has attempted to have a complete set of fingerprints taken on at least two occasions;

2. The taking of a complete set of legible fingerprints is not possible because of a physical or medical condition of the eligible employee's fingers or hands;

3. The eligible employee submits documentation satisfactory to the department of the requirements of this subsection; and

4. The eligible employee submits the other information required for a criminal history records check to be conducted by the department as part of the application process.

Prince George's County.- The chief administrative officer of Prince George's County may request with reference to a prospective employee of the county a state and national criminal history records check from the central repository of the Department of Public Safety and Correctional Services (Sec. 10-236, as added by Ch. 364 (H. 678), L. 2004, effective October 1, 2004).

Baltimore County.- The county administrative officer of Baltimore County or a designee of the county administrative officer, which shall be the director of human resources or the director's designee, may request from the central repository of the Department of Public Safety and Correctional Services a state and national criminal history records check for a prospective employee or volunteer of the county (Criminal Procedure Article, Sec. 10-231.1, as added by Ch. 28 (H. 549), L. 2009, effective October 1.2009)

Expunged information.- An employer or educational institution may not, in any application, interview, or otherwise, require an applicant for employment to disclose information concerning criminal charges against him or her that have been expunged. An applicant need not, in answering any question concerning criminal charges that have not resulted in a conviction, or in answering any questions concerning convictions pardoned by the Governor, include a reference to or information concerning charges that have been expunged. An employer may not discharge or refuse to hire a person solely because of his or her refusal to disclose information concerning criminal charges against him or her that have been expunged (Art. 27, Sec. 740(a)).

Agencies, officials, and employees of the state and local governments may not, in any application, interview, or otherwise, require an applicant for a license, permit, registration, or governmental service to disclose information concerning criminal charges against him or her that have been expunged. An applicant need not, in answer to any question concerning criminal charges that have not resulted in a conviction, or convictions pardoned by the Governor, include a reference to or information concerning charges that have been expunged. Such an application may not be denied solely because of the applicant's refusal to disclose information concerning criminal charges against him or her that have been expunged (Art. 27, Sec. 740(b)).

A person who violates this section is guilty of a misdemeanor, and upon conviction, is subject to a fine of not more than $1,000 or imprisonment for not more than one year, or both, for each violation. If the person is an official or employee of the state or any subdivision of the state, he or she will, additionally, be subject to removal or dismissal from public service on grounds of misconduct in office (Art. 27, Sec. 740(b)).

Job reference liability.- An employer acting in good faith may not be held liable for disclosing any information about the job performance or the reason for termination of employment of an employee or former employee of the employer (Sec. 5-399.7, as added by Ch. 469, L. 1996):

1. to a prospective employer of the employee or former employee at the request of the prospective employer, the employee, or former employee; or

2. if requested or required by a federal, state, or industry regulatory authority or if the information is disclosed in a report, filing, or other document required by law, rule, order, or regulation of the regulatory authority.

An employer who discloses information as described above is presumed to be acting in good faith unless it is shown by clear and convincing evidence that the employer (Sec. 5-399.7, as added by Ch. 469, L. 1996):

1. acted with actual malice toward the employee or former employee; or

2. intentionally or recklessly disclosed false information about the employee or former employee.

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Maryland, Preemployment Inquiries Law Summaries

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