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Why ‘ban the box’ rules are becoming more popular

In January 2021, a “Ban the Box” ordinance will go into effect in St. Louis, making it the latest major city in Missouri to enact legislation that restricts employers from asking job applicants about their criminal history.

The St. Louis measure will bar private employers with 10 or more employees from basing hiring or promotion decisions on applicants’ criminal history, and inquiring about applicants’ criminal history until after they have determined an applicant is otherwise qualified for the position.

Penalties for violations range from a warning to revocation of the business license required to operate within the city. The measure comes seven years after St. Louis required its city offices to stop asking job applicants about their felony convictions unless the position required a criminal background check.

Kansas City — with an ordinance affecting private businesses with six or more employees — and Columbia also have enacted similar legislation. So-called “ban the box” laws that bar criminal-history inquiries when hiring for state government jobs have been passed in 35 states, including Missouri, and the District of Columbia.

More than 150 counties and municipalities nationwide have adopted similar ordinances. Some versions of the ordinance prevent employers from conducting background checks on candidates unless there is a good-faith determination that the relevant position requires a background check.

Although most of the laws passed apply strictly to public employees or municipal contractors, some employment attorneys anticipate that the rules could eventually be passed to apply to private sector employers.

“It’s a national trend,” said attorney David Dubberly of Nexsen Pruet in Columbia, South Carolina. “And the idea is, if somebody has already served their time, they’ve paid their debt to society. So you don’t want to ask them up front on the application about their criminal convictions. You want to let them get a little farther through the application process before that issue comes up.”

Dubberly said criminal background checks often are still being done on candidates, just not through the job application.

“All of these public employers … are doing a criminal background check. The ones that have enacted these ordinances, they’re just not doing it at the beginning of the application process. They’re doing it a little bit later in the application process,” he said.

To avoid violations, employers need to be consistent with their application process. Internal policies must be consistent for every applicant to avoid accusations of discrimination when inquiring about either criminal or salary history. If an applicant’s criminal history is important for the job, employers shouldn’t ask about it until an offer of employment is ready to be extended.

“We advise regularly on ‘ban the box’ issues, including whether an employer should adopt a one-size-fits all, lowest common denominator approach — which, if you want to do that and you’re a nationwide employer, then you have to wait to ask about criminal history until after the conditional offer,” said Stephen Woods of Ogletree Deakins in Greenville, South Carolina, who is chair of the firm’s national background check practice group.

Restrictions on asking applicants to reveal previous salary history also are becoming more common, and employment attorneys are watching the spread of both ban the box and salary history prohibition rules. Christy Rogers, also with Nexsen Pruet, said momentum for such rules is growing nationwide and bipartisan in nature.

Employment attorneys should be aware of the existence of these ordinances if they represent companies that operate in multiple states and jurisdictions, she said. Companies who use one job application for candidates nationwide should review their procedures, she added.

“We already see that there are some things that are happening that are creating some obligations for some employers, even if they are private employers.  The Fair Chance Act that President Trump signed into law in December applies to all federal contractors,” Rogers said. “So there are already some things that are being enacted to create some additional restrictions.”