Employers: If you’re nervous about “Ban the Box,” read this.
By: Wendy Meyer
If you are an employer in Iowa, chances are your employment application contains the question: “Have you ever been convicted of a crime?” Soon, however, Iowa may be joining the 20 states that have adopted a law that removes the question from employment applications.
Iowa lawmakers are considering “ban the box” legislation that would prohibit employers from asking job applicants about their criminal records on employment application forms. Employers would still be able to inquire into an applicant’s criminal background, but would have to wait until a conditional job offer has been given or the applicant has been selected for an interview.
In a February 17 Des Moines Register interview, Senator Herman Quirmbach, stated, “The bill does not tell an employer who they can or cannot hire. It does not say that anybody has to hire anybody who has been in trouble with the law. The hiring decision remains squarely in the hands of the employer.”
Though currently Iowa law does not prohibit an employer from inquiring into an applicant’s criminal history, employers must still be wary of how they use such information. The Equal Employment Opportunity Commission (“EEOC”), the federal entity that enforces Title VII of the Civil Rights Act, has determined using arrest and conviction records in the employment screening process may result in a disparate impact to minorities, considering statistics reflect Hispanics and African Americans are arrested in numbers disproportionate to their representation in the general population.
For most Iowa employers, a broad policy of not hiring any applicant with a criminal history may prove troublesome. The EEOC recommends developing narrowly tailored policies and procedures for considering criminal conduct. Policies and procedures should take into consideration job requirements, specific criminal offenses that may conflict with such job requirements, and the age of the offense and allow for individualized assessment.
As an aside, for those employers that utilize third parties to perform criminal history checks or other types of background checks on applicants or employees, the employer must be in compliance with the Fair Credit Reporting Act (“FCRA”). The FCRA requires certain certifications and notices be provided prior to obtaining a background check and prior to and after an employer utilizes information from a background check in making employment decisions.
The bottom line: Though the implications for passing “Ban the Box” legislation mean more than simply removing a question from a job application, it does not alter an employer’s ultimate decision-making authority for hiring qualified employees.
Wendy helps clients with employment issues related to the employment relationship and regularly presents on topics related to harassment, discrimination, FMLA compliance, ADA compliance, effective documentation, and legal updates. Learn more about her work at: https://www.l-wlaw.com/attorneys/wendy-s-meyer/.