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.
The City of St. Louis, Missouri enacted a ban-the-box ordinance prohibiting employers within the city from basing promotions or hiring decisions on an individual’s criminal history or a related sentence.1 The ordinance will take effect January 1, 2021. In the meantime, the Office of the License Collector (OLC) in the City of St. Louis is instructed to publicize that compliance with the ordinance will be a requirement for local businesses to obtain a business license.
The ordinance prohibits employers located within the City of St. Louis with 10 or more employees from asking about criminal history on applications and hiring forms. Employers are also barred from posting job advertisements that exclude applicants with a criminal history and from using exclusionary language in applications or other hiring forms. Employers are further prohibited from asking about or investigating an applicant’s criminal background until after the applicant has been interviewed and deemed qualified for the position. At that point, an employer that chooses to inquire into criminal history information must ask all applicants in the “final selection pool from which the position will be filled” about any past criminal history. Employers may not attempt to circumvent these restrictions by seeking publicly available information about an individual’s criminal history.
Employers may base hiring or promotion decisions on lawfully-obtained criminal history information when they can show that the “decision is based on all information available including the frequency, recentness and severity of the criminal history and the history is reasonably related to or bears upon the duties and responsibilities of the job position.”
In addition, employers that are hiring for certain positions are not bound by the ordinance’s restrictions related to exclusionary language or criminal history inquiries in job advertisements, applications, or other hiring forms. Specifically, those prohibitions do not apply to positions where federal, state, or City of St. Louis laws or regulations would preclude employers from hiring individuals with certain criminal histories. Employers also may seek publicly available information about candidates for such positions.
Enforcement and Penalties
Aggrieved individuals may submit complaints to the Civil Rights Enforcement Agency (Agency), which will be responsible for investigating alleged violations. If the Agency finds merit to a complaint, it shall refer the matter to the OLC to enforce the ordinance, including potential imposition of penalties.
For a first violation, the OLC will issue a warning, or an order requiring that the employer become compliant within 30 days. For a second violation, employers would receive an order for compliance within 30 days, as well as a civil penalty as determined by the OLC. The civil penalty should not exceed the maximum allowed by St. Louis codes and ordinances.2 For a third violation, employers could be subject to possible revocation of their business license in the city.
The ordinance obligates the OLC and the Agency to coordinate with the Chair of the Committee on Legislation to create rules for the ordinance’s penalty procedures, which they must present to the Legislation Committee of the Board of Alderman.
Other Local Ban-the-Box Laws in Missouri
The St. Louis ordinance seeks to build upon an executive order signed by former Mayor Francis Slay in 2014 that banned the City of St. Louis offices from requiring all job applicants to disclose felony convictions, unless the position legally required criminal background checks. The St. Louis County Executive announced a similar executive order for county government applicants in 2018.
While Missouri does not have a state ban-the-box law, Kansas City and Columbia, Missouri both have local ordinances. The Kansas City measure applies to employers with six or more employees and is generally similar to the St. Louis ordinance. Employers that violate the Kansas City ordinance may be subject to a 30-day revocation of their business license.
In Columbia, Missouri, the ordinance is less strict, in that employers are “encouraged” not to ban job seekers automatically based on a criminal record and are allowed to notify applicants of any specific offenses would disqualify them for particular jobs. Employers in Columbia are prohibited from seeking or inquiring into an applicant’s arrests, charges, or convictions in the past, however, both on application materials and at any time before the employer has extended a conditional job offer.
As ban-the-box measures continue to spread across the country, affected employers should be aware of all relevant requirements. Employers in the City of St. Louis should be careful to train hiring staff and update applications and other hiring documents (whether in hardcopy or electronic) as well as advertisements, to comply with the new ordinance.
1 Notably, the ordinance does not define what type of criminal history information will be off-limits.
2 The ordinance does not specify which penalty provisions apply for violations. Based on a review of the St. Louis code and ordinances, the maximum penalty amount appears to be $500. See, e.g., St. Louis, Mo., Code § 1.12.010 (imposing a general penalty for code violations ranging from $1 to $500, unless otherwise specified); id. § 3.44.150 (imposing a penalty ranging from $250 to $500 for commission of prohibited discriminatory practices in employment or housing).