Employers are finding their ability to ask about an applicant’s criminal background more difficult as more states pass “ban-the-box” legislation.  The name of these laws comes from the removal of the box on job applications where applicants must check if they have a prior criminal conviction. While various jurisdictions have different versions of this law, the general rule is that an employer may not require a criminal background check before making a conditional offer of employment.  Understanding the nuances of each jurisdiction’s version of the “ban-the-box” statute is critical to avoid potential liability on an individual or class-wide basis.

St. Louis, Missouri’s Ban-the-Box Regulation Goes into Effect January 1, 2021

On January 1, 2021, St. Louis, Missouri’s Ordinance 71074 goes into effect for employers with ten or more employees.   The Ordinance prohibits employers from asking about an applicant’s criminal history before making a conditional employment offer. Additionally, employers cannot base a decision to hire or promote an applicant based on their criminal history, unless the employer can demonstrate that the frequency, recentness and severity of the criminal history hinders or is related to the job duties of the position.  An employer may inquire into an applicant’s criminal history after the final interview, so long as that inquiry applies to all applicants in the “final selection pool.”

The Ordinance also prohibits employers from:

• publishing job advertisements excluding applicants on the basis of criminal history, or
• including statements on job applications excluding applicants on the basis of criminal history.

Montgomery County, Maryland’s Amendment Effective February 19, 2021

On February 19, 2021, a similar piece of legislation will become effective for Montgomery County, Maryland.  Applicable to employers with 15 or more full-time employees, the legislation prohibits requiring applicants to disclose whether or not the applicant has an arrest record or conviction record or has been accused of a crime or conduct a criminal record check before making a conditional offer of employment.

The Montgomery County, MD legislation also provides that employers are prohibited from requiring an applicant to disclose:

• matters that have not resulted in convictions,
• first convictions for trespass, disturbance of the peace, or assault in the second degree,
• convictions of misdemeanors if at least three years have passed, or
• matters for which records have been declared confidential or expunged.

Of course, employers may engage in a dialogue with an applicant about the existence of a conviction or arrest record when the applicant volunteers such information, but an employer may not initiate or prompt such information from the applicant expect as provided within the ordinance.

Updates to New York City and Colorado Regulations

New York City is expanding the Fair Chance Act, which will become law January 9, 2021 if Mayor Bill de Blasio does not sign or veto the law prior to that date.  The amendment would expand the scope of ban-the-box measures to include additional requirements for employers after an employee is hired.  This amendment provides more employee protections during employment and before adverse actions are taken by the employer.  In the event that New York City’s expanded Fair Chance Act becomes effective, a dedicated client alert will follow.

Colorado is expanding its ban-the-box measures to all private employers beginning September 1, 2021.  Colorado already enforces its ban-the-box measure against private employers with 11 or more employees.  These employers must not state in a job advertisement that a person with a criminal record may not apply, state on a job application that a person with a criminal record may not apply, or inquire about or require the disclosure of an applicant’s criminal history on an initial application.

Remaining jurisdictions

Please note that localities may have stricter requirements, so employers should consider all applicable laws when developing and reviewing their job application processes.

We have created a chart for the remaining statewide “ban-the-box” law for your review:

Jurisdiction	Covered Employers	Prohibited Conduct
California	Employers with five or more employees	Requiring disclosure of applicant’s conviction history before making a conditional offer of employment Inquiring into an applicant’s conviction history before making a conditional offer of employment
Connecticut	All employers	Inquiring about an applicant’s criminal history on an initial job application
District of Columbia	Employers with more than ten employees	Inquiring about or requiring disclosure of an applicant’s arrest, pending criminal accusation, or criminal conviction before making a conditional employment offer
Hawaii	Employers with one or more employees	Inquiring into or considering conviction records of an applicant before making a conditional employment offer
Illinois	Employers with at least fifteen employees	Inquiring about, considering, or requiring disclosure of an applicant’s criminal record or criminal history before making a conditional employment offer or after the applicant has been selected and notified for an interview
Maryland	Employers with at least fifteen employees	Requiring disclosure of applicant’s criminal record before the first in-person interview
Massachusetts	Employers with six or more employees	Requesting criminal record information on initial job application forms
Minnesota	All employers	Inquiring into, considering, or requiring disclosure of an applicant’s criminal record or history before making a conditional employment offer
New Jersey	Employers with fifteen or more employees over 20 calendar weeks	Inquiring into or requiring disclosure of applicant’s criminal record before making a conditional employment offer Advertising job openings that applicants with a criminal record may not apply
New Mexico	Private employers	Inquiring about an applicant’s arrest or conviction history on an employment application
Oregon	Employers with one or more employees	Requiring disclosure of applicant’s criminal conviction before making a conditional employment offer
Rhode Island	Employers with four or more employees	Inquiring whether an applicant has been arrested, charged with, or convicted of any crime before the first interview
Vermont	All employers	Requesting criminal history on an initial employment application
Washington	All public and private sector employers	Including questions on employment applications regarding criminal background checks Advertising a job opening as “no felons” or “no criminal background” Automatically disqualifying applicants based on criminal record

Employers should stay current on these issues as more jurisdictions pass similar laws.  Employers in the jurisdictions listed in this client alert should review their policies and procedures to ensure compliance.

If you have any questions regarding the issues raised in this client alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.