Waterloo has enacted Iowa’s first “Ban the Box” regulation and has also enacted rules as to how criminal records may be used even after the application process.
The “box” is a question on the application about prior criminal convictions. Some industries require the question.
Who does the Ban cover?
- Private employers with one or more employees and the City of Waterloo are subject to ban the box.
- Employers with 15 or more employees are subject to the additional provisions relating to the use of a criminal record.
Who does the Ban not cover?
- Employees of the State of Iowa
- Employees of the United States
- County, and other political subdivision, employees including Black Hawk County where Waterloo is located
- Employers who are required by law to make a criminal record inquiry at the application phase, such as hospitals, long-term care and certain other industries
What does the Ban do?
For all covered employers, it means the employers may not use any method to inquire about an applicant’s criminal records prior to making a contingent offer of employment. This includes background checks and asking the applicant about previous criminal activity. Employers may discuss the criminal record if voluntarily disclosed by the applicant during the application or interview process.
For employers with 15 or more employees, employers
- May not make any employment decision based on pending or unresolved charges
- May not use convictions that have been erased, expunged, pardoned or nullified
- Must have a legitimate business reason to rescind the offer based on a criminal record
What is a legitimate business reason?
- If the reason is required by law, such as childcare, healthcare, or financial sector companies
- Where the criminal conduct has a “direct and substantial bearing” on the job, taking into consideration a variety of factors, including, but not limited to: the date of the convictions; number of convictions; whether the employment presents an opportunity to participate in a similar crime; the job safety; as well as “any verifiable information provided by the applicant” relative to rehabilitation.
This definition appears patterned after existing guidance on criminal records promulgated by the EEOC.
How do I rescind the offer?
This may depend on how you learned of the criminal record.
- If the person you offered the job to (the offeree) tells you, then you can rescind by letter.
- If you perform a third-party background check, then you would need to follow the provisions of the FCRA.
- If you perform a mandatory state check, the SING roles apply.
What happens if I make a mistake?
- There is no private right of action. The offeree cannot, under this statute, directly file a civil suit.
- If a complaint is made to the Waterloo Commission on Human Rights and they find a violation, it is referred to the City Attorney for review and potential prosecution.
- A first offense fine of $750 and a repeat offense within three years results in a fine of $1,000. Fines are paid to the person who made the complaint.
When do I have to comply?
July 1, 2020
Didn’t the Iowa Legislature pass a law about individual city regulations?
Yes, Ban the Box may be subject to challenge based on a state statute passed in 2018 that prohibits cities and counties from passing individual regulations for minimum wage, leave, or hiring practices and other conditions of employment.
DAVID BROWN LAW FIRM, NOVEMBER 2019