Update #2: Waterloo, Iowa Enacts Ban the Box Restrictions

Seyfarth Synopsis:  Waterloo, Iowa has enacted the state’s first “Ban the Box” Ordinance.

UPDATE #2:  On April 3, 2020, the lawsuit brought by the Iowa Association of Business and Industry (the “Association”) against the City of Waterloo and the Waterloo Commission on Human Rights was dismissed for lack of merit.  The Association unsuccessfully argued that the City’s Fair Chance Initiative implementing ban the box restrictions violated Section 364.3 of the Iowa Code (which limits municipality regulation of hiring practices to the extent it exceeds or conflicts with federal or state law) and should be enjoined from enforcement.  Accordingly, as of July 1, 2020, employers will no longer be allowed to have a criminal history box on applications, and can no longer inquire about criminal history before making a conditional offer of employment.

All private employers with at least 15 employees, including the City of Waterloo, are subject to the Ban the Box Ordinance (the “Ordinance”), which is scheduled to take effect on July 1, 2020.  Covered employers may not inquire in any manner about an applicant’s criminal records prior to issuing a conditional offer of employment, unless criminal history is voluntarily disclosed by the applicant before an offer. Employers also are prohibited from making any employment decision based on:

• arrests or pending criminal charges; and
• convictions that have been erased, expunged, pardoned or nullified.

In addition, an employer may only rescind a conditional offer of employment based on a criminal record if it has a legitimate business reason, which means, according to the Ordinance:

• 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 position, taking into consideration the following factors: the nature of the position, the place and manner in which the duties will be performed, the nature and seriousness of the offense or conduct, whether the position presents an opportunity for the commission of a similar offense or conduct, the length of time between the conviction or arrest and the employment application (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 the granting of 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 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.
• 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.

Employer Outlook

Covered employers located in Waterloo, Iowa, and particularly multi-state employers, should ensure that their employment practices will comply with the Ordinance by July 1, 2020.