Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On December 1, 2014, the City of Columbia, Missouri, City Council enacted an ordinance restricting a private employer’s ability to inquire about job applicants’ criminal history information on an employment application. Columbia’s legislation comes closely on the heels of similar laws enacted in the District of Columbia and surrounding regions. Now, a total of 17 jurisdictions — six states and eleven counties or municipalities — have banned the box for private employers. Many other jurisdictions are considering such legislation for private employers and already have enacted such legislation for public employers and their vendors.
Ban-the-box laws impose a variety of substantive and procedural restrictions on employers’ inquiries into criminal history during the hiring process. Columbia’s ordinance is not especially onerous, unlike the laws in some other jurisdictions, like the District of Columbia and San Francisco. In short, Columbia employers may no longer inquire into, seek information about or ask job applicants to disclose their criminal history until after the employer makes a conditional offer of employment to the job applicant.
Columbia’s ordinance does not specify which employers are subject to the new law. However, it does identify several circumstances where the “ban-the-box” law does not apply, including the following:
- the employer is required to exclude applicants with certain criminal convictions from employment due to local, state or federal law or regulation (for example, employees who care for vulnerable individuals or certain bank employees);
- a standard fidelity bond or an equivalent bond is required and an applicant’s conviction of one or more specified criminal offenses would disqualify the applicant from obtaining such a bond; or
- the employer employs individuals licensed under the Emergency Medical Services Systems Act.
The Columbia ordinance expressly allows employers to notify applicants in writing of the “specific offenses that will disqualify an applicant from employment in a particular position.” The ordinance also encourages employers to consider a variety of factors before rejecting an applicant based on criminal history, including “consideration of the frequency, recentness and severity of a criminal record as well as rehabilitation efforts against the duties and responsibilities of the position.” These factors are among those which, according to the EEOC’s April 2012 Enforcement Guidance on the use of criminal history for employment decisions, employers should consider when conducting an individualized assessment of an applicant’s criminal history.
Aggrieved individuals do not have a private right of action, but can file an administrative complaint with the Human Rights Commission. According to the ordinance, employers that violate its provisions shall be subject to a fine not to exceed $1,000.00 or 30 days imprisonment or both.
Recommendations for Employers
To comply with the Columbia ordinance, which immediately went into effect, covered employers hiring for positions located in Columbia should consider taking the following steps:
- Review their employment applications to remove questions about criminal history;
- Revise their hiring procedures to delay any inquiry about criminal history until after the conditional offer of employment.