Employers are finding their ability to ask about an applicant’s criminal background more difficult as more states pass “ban-the-box” legislation. The name of these laws comes from the removal of the box on job applications where applicants must check if they have a prior criminal conviction. While various jurisdictions have different versions of this law, the general rule is that an employer may not require a criminal background check before making a conditional offer of employment. Understanding the nuances of each jurisdiction’s version of the “ban-the-box” statute is critical to avoid potential liability on an individual or class-wide basis.
St. Louis, Missouri’s Ban-the-Box Regulation Goes into Effect January 1, 2021
On January 1, 2021, St. Louis, Missouri’s Ordinance 71074 goes into effect for employers with ten or more employees. The Ordinance prohibits employers from asking about an applicant’s criminal history before making a conditional employment offer. Additionally, employers cannot base a decision to hire or promote an applicant based on their criminal history, unless the employer can demonstrate that the frequency, recentness and severity of the criminal history hinders or is related to the job duties of the position. An employer may inquire into an applicant’s criminal history after the final interview, so long as that inquiry applies to all applicants in the “final selection pool.”
The Ordinance also prohibits employers from:
- publishing job advertisements excluding applicants on the basis of criminal history, or
- including statements on job applications excluding applicants on the basis of criminal history.
Montgomery County, Maryland’s Amendment Effective February 19, 2021
On February 19, 2021, a similar piece of legislation will become effective for Montgomery County, Maryland. Applicable to employers with 15 or more full-time employees, the legislation prohibits requiring applicants to disclose whether or not the applicant has an arrest record or conviction record or has been accused of a crime or conduct a criminal record check before making a conditional offer of employment.
The Montgomery County, MD legislation also provides that employers are prohibited from requiring an applicant to disclose:
- matters that have not resulted in convictions,
- first convictions for trespass, disturbance of the peace, or assault in the second degree,
- convictions of misdemeanors if at least three years have passed, or
- matters for which records have been declared confidential or expunged.
Of course, employers may engage in a dialogue with an applicant about the existence of a conviction or arrest record when the applicant volunteers such information, but an employer may not initiate or prompt such information from the applicant expect as provided within the ordinance.
Updates to New York City and Colorado Regulations
New York City is expanding the Fair Chance Act, which will become law January 9, 2021 if Mayor Bill de Blasio does not sign or veto the law prior to that date. The amendment would expand the scope of ban-the-box measures to include additional requirements for employers after an employee is hired. This amendment provides more employee protections during employment and before adverse actions are taken by the employer. In the event that New York City’s expanded Fair Chance Act becomes effective, a dedicated client alert will follow.
Colorado is expanding its ban-the-box measures to all private employers beginning September 1, 2021. Colorado already enforces its ban-the-box measure against private employers with 11 or more employees. These employers must not state in a job advertisement that a person with a criminal record may not apply, state on a job application that a person with a criminal record may not apply, or inquire about or require the disclosure of an applicant’s criminal history on an initial application.
Please note that localities may have stricter requirements, so employers should consider all applicable laws when developing and reviewing their job application processes.
We have created a chart for the remaining statewide “ban-the-box” law for your review:
|Jurisdiction||Covered Employers||Prohibited Conduct|
|California||Employers with five or more employees||
|District of Columbia||Employers with more than ten employees||
|Hawaii||Employers with one or more employees||
|Illinois||Employers with at least fifteen employees||
|Maryland||Employers with at least fifteen employees||
|Massachusetts||Employers with six or more employees||
|New Jersey||Employers with fifteen or more employees over 20 calendar weeks||
|New Mexico||Private employers||
|Oregon||Employers with one or more employees||
|Rhode Island||Employers with four or more employees||
|Washington||All public and private sector employers||
Employers should stay current on these issues as more jurisdictions pass similar laws. Employers in the jurisdictions listed in this client alert should review their policies and procedures to ensure compliance.
If you have any questions regarding the issues raised in this client alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.