On December 1, 2014, the City Council in Columbia, Missouri voted unanimously to prohibit both public and private employers from asking about the criminal convictions of a job applicant on a job application. Under this “Ban the Box” law – a phrase referring to the check box on employment applications inquiring whether an applicant has been convicted of a crime – employers will not be allowed to ask about criminal convictions or run criminal background checks on job applicants until after the applicant has been given a conditional job offer. Once the applicant receives the conditional job offer, employers may then look into the criminal background of the individual as permitted by law.
The State of Illinois has passed similar legislation called the “Job Opportunities for Qualified Applicants Act” which goes into effect January 1, 2015. The Illinois act prohibits both private employers with fifteen or more employees, and employment agencies, from asking about, considering, requiring disclosure of, or doing an independent check of an applicant’s criminal history, until an applicant: (1) has been determined to be qualified for the applied-for-position and has been notified that he or she has been selected for an interview, or (2) has been given a conditional job offer.
The movement to “Ban the Box” goes beyond these newly enacted laws. Employers must be careful in how they are using criminal background information in hiring whether a “Ban the Box” law is in effect or not. The Equal Employment Opportunity Commission (EEOC) has filed suit against some employers in recent months where use of applicants’ criminal histories resulted in a discriminatory impact on minority applicants. An employer may be able to avoid liability in such a case, if, the employer can show that prior to the hiring process it determined which applicants would be disqualified based upon (1) the nature of the crime the applicant committed, (2) the time elapsed and (3) the nature of the open job position.
Disqualifying crimes must be crimes that relate to the requirements of the specific position; for example, a prior conviction for Driving While Revoked may not relate to a position in the wait-staff. Employers must make the distinction between arrests and convictions since the EEOC does not allow arrests to be considered in hiring decisions. Even when following these rules, the EEOC recommends that employers notify each applicant that is disqualified and allow the applicant to supply further information. To avoid liability, employers should ensure that hiring decisions are made with all available information, and consistent with business necessity.
These new laws are highly applicable to the food service industry, because exceptions to these laws will be unlikely to apply to food service establishments. In light of this quickly growing movement, and the EEOC’s response to usage of criminal history data, all employers in the food service industry should amend their employment applications and consider modifying their hiring process to avoid potential litigation.
This link will take you to a press release on the City of Columbia website announcing passage of the legislation:This article written by Christine S. Coleman and James N. Foster, Jr. The law firm of McMahon Berger, P.C. has served as Labor Employment Counsel for Missouri Restaurant Association for over 30 years. McMahon Berger provides labor and employment law guidance for MRA members through the Labor and Employment Law Hotline.