New Year, New Local Ban-the-Box Restrictions on Background Checks

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With the start of a new year—and a new decade—employers in San Francisco, California, Waterloo, Iowa, and Grand Rapids, Michigan, must follow new “ban-the-box” laws restricting their use of criminal records in hiring and personnel decisions.  In addition, Maryland’s statewide ban-the-box law becomes operative on February 29, 2020.1  Looking ahead, St. Louis, Missouri enacted new restrictions that will take effect on January 1, 2021.  Federal contractors also will be subject to new restrictions as of December 20, 2021. The following summarizes the three new city-wide laws that are now, or will soon be, in place.

Grand Rapids, Michigan’s New Ban-The-Box Law  

Under Michigan state law, an employer may inquire into pending felony charges before a conviction or dismissal, and may ask applicants whether they have ever been convicted of a crime.

Effective December 1, 2019, applicants for employment in the City of Grand Rapids have more protections.  In a newly enacted “Human Rights” chapter of the city code, Grand Rapids deems it unlawful for an employer to discriminate against a current or prospective employee with respect to hire; tenure; terms, conditions or privileges of employment; or any matter directly or indirectly related to employment, unless such act is based on a “bona fide occupational qualification.”  

Employers may not consider arrests that have not led to a conviction.  A history of one or more criminal convictions may constitute bona fide occupational qualifications.  However, employers may not outright refuse to hire any person on the basis of that applicant’s criminal record without first carefully considering, on a case-by-case basis, various factors to determine “whether the crime for which the individual was convicted may pose a demonstrable risk to the health, safety or welfare of other employees or persons or to property.”  These factors include the nature and severity of the crime, the age of the individual at the time of the crime, whether the individual has engaged in repeat offenses, whether the applicant maintained a good employment history before or after the conviction, and evidence of rehabilitation efforts.  

Excluded from bona fide occupational qualifications are “anticipated or actual objections of other employees, co-workers, customers, or other persons unrelated to the individual’s competence as an employee.” 

The Ordinance establishes a complaint procedure whereby any individual can complain to the City Office of Diversity and Inclusion (ODI) of unlawful discrimination within 180 days.  The ODI can refer the complaint to an appropriate federal, state or local investigative agency, conduct its own investigation in conjunction with the city attorney’s office, arrange for mediation between the involved parties, or dismiss the complaint.  The ODI may issue a civil infraction citation for violating the Ordinance, punishable by a fine of not more than $500 and all other remedies authorized by Michigan law.

In addition, a person alleging a violation of the Ordinance also may file a civil action for injunctive relief and/or damages, including against the employer.

San Francisco, California Amended Fair Chance Ordinance

In addition to California’s statewide restrictions, San Francisco has its own expansive ban-the-box law.  San Francisco’s Fair Chance Ordinance (FCO), enacted in 2014, applies to employers with at least five employees worldwide, as well as city contractors of any size.  Moreover, the FCO applies to any position that requires on average at least eight hours of work per week in San Francisco, whether a temporary, contingent, part-time, seasonal, commission-based or contract position. 

Generally, the FCO prohibits employers from asking applicants to provide the fact or details of any conviction history, unresolved arrest, or any matter otherwise off-limits before the employer has made a job offer conditional on passing a background check.  The FCO also includes certain restrictions on the representations made in job advertisements, as well as specific posting and notice requirements.

A new poster is available from the city and should be posted in a conspicuous place at every workplace, job site, or other location in San Francisco under the employer's control frequently visited by its employees or applicants.  The employer must also send a copy of this notice to each labor union or representative of workers with which it has a collective bargaining agreement applicable to San Francisco employees.  Employers may need to update any presentation of this poster if displayed to applicants on-line.

Until October 1, 2018, the FCO could be enforced only by complaining to the Office of Labor Standards Enforcement.  The FCO was amended at that time to add the right to sue an allegedly non-compliant employer in court.  However, the applicant must have first filed a complaint with the supervising city agency and informed the city of the intent to file suit, and the city must confirm in writing that it does not intend to pursue the complaint.  Suits must be brought within one year of the alleged violation.

Waterloo, Iowa’s New Ordinance

While the State of Iowa has no statewide ban-the-box restrictions on criminal background checks, the City of Waterloo, Iowa recently followed the growing trend.  Effective July 1, 2020, Waterloo’s new ordinance will restrict Waterloo employers’ ability to screen applicants before making a conditional offer of employment. 

All employers will be prohibited from including a criminal record inquiry on any job application.  Employers of 15 or more employees also are prohibited from:

  • Making any inquiry regarding, or requiring any person to disclose, any convictions, arrests, or pending criminal charges during the application process, including but not limited to during an interview; however, if applicants voluntarily disclose their criminal record during an in-person or telephonic interview, the employer may discuss that criminal record with them.
  • Making an adverse hiring decision based solely on the applicant’s record of arrests or pending criminal charges that have not yet resulted in a conviction;
  • Making an adverse hiring decision based on any criminal records that have been lawfully erased or expunged, that are the subject of an executive pardon, or that were otherwise legally nullified; or
  • Making an adverse hiring decision based on an applicant’s criminal record without a “legitimate business reason.”  A legitimate business reason includes:
    • Situations where the nature of the criminal conduct has a direct and substantial bearing on the fitness or ability to perform the duties or responsibilities of the intended employment, taking into consideration the following factors:
      • The nature of the employment;
      • The place and manner in which the employment will be performed;
      • The nature and seriousness of the offense or conduct;
      • Whether the employment presents an opportunity for the commission of a similar offense or conduct;
      • The length of time between the conviction or arrest and the application for employment (not including time on probation or parole or the time during which fines or other financial penalties or remedies may be outstanding);
      • The number and types of convictions or pending charges; and
      • Any verifiable information provided by the applicant that is related to the applicant’s rehabilitation or good conduct.
    • Situations where granting employment would involve unreasonable risk of substantial harm to property or to safety of individuals or the public, or to business reputation or business assets, taking into consideration the same factors listed above;
    • Positions working with children, developmentally disabled persons and vulnerable adults where the applicant has a conviction record of a crime against children or disabled or vulnerable adults, including but not limited to crimes of rape, sexual abuse, incest, prostitution, pimping, pandering, assault, domestic violence, kidnapping, financial exploitation, neglect, abandonment, and child endangerment; and
    • Situations where an employer must comply with any federal or state law or regulation pertaining to background checks and the criminal conduct is relevant to the applicant’s fitness for the job.

Waterloo’s restrictions do not apply to employers required by federal or state law or regulation to make an inquiry into criminal history on an application or in an interview.

An individual alleging a violation of the ordinance may file a complaint with the Waterloo Human Rights Commission within 300 days.  An employer found to be in violation could be fined—payable to the complainant—of up to $750 for the first offense and up to $1,000 for subsequent offenses within a three-year period.  The ordinance does not create a private right of action to seek damages or other relief in court.

Recommendations

The state and local laws restricting inquiries into and the use of criminal records by employers continue to proliferate and will continue to do so.  It is therefore important for employers, particularly multi-state employers, to continue to closely monitor developments in this and related areas of the law, including the fair credit reporting laws2 and Title VII of the Civil Rights Act.3  Steps employers should take to maintain compliance include, but are not limited to, reviewing job postings, policies, practices, and procedures, and providing training to staff members responsible for and involved in hiring and personnel decisions, including posting jobs, interviewing candidates, corresponding with job applicants, reviewing (adjudicating) background checks, and drafting guidelines and other documentation.

 

Footnotes

1 Note that additional restrictions remain in effect for employers in the City of Baltimore, Montgomery County and Prince George’s County.

2 See Rod M. Fliegel, The Ninth Circuit Adopts an Expansive Reading of the FCRA’s Provision Governing Background Check Disclosures, Littler ASAP (Jan. 29, 2019), and Rod Fliegel, Alison Hightower, and Allen Lohse, High Alert for California Employers and Employers Nationwide for the Second Wave of FCRA Class Actions, Littler Insight (Oct. 19, 2017).

3 See Rod Fliegel and Molly Shah, Dollar General Reaches Settlement with the EEOC in Years-Long Background Check Bias Suit, Littler Insight (Nov. 1, 2019); Rod Fliegel and Molly Shah, Fifth Circuit Deals a Blow to EEOC’s Criminal Record Guidance, Littler ASAP (Aug. 6, 2019); and Rod M. Fliegel and Julie A. Stockton, EEOC Continues to Scrutinize Criminal Record Screening Policies, Littler ASAP (Oct. 1, 2018).

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