2022Ban the Box

Written By Digital Content Editor Thomas Ahearn

In November 2021, the City Council of Des Moines, Iowa, unanimously passed a “Ban the Box” ordinance to make it “illegal and discriminatory” for employers to include criminal history questions on job applications and to inquire into criminal history or conduct criminal background checks before a conditional offer of employment.

Under the “Ban the Box” law that would amend the Des Moines Municipal Code, employers may not include a criminal records inquiry on employment applications or ask about or make job applicants disclose any convictions, arrests, or pending criminal charges during the application process, including during an interview.

The ordinance allows employers to discuss criminal records if they are voluntarily disclosed by applicants at an interview. In addition, employers must comply with all federal and state requirements relating to authorizations for background checks, the pre-adverse and adverse action process, and the use of criminal record information.

In June 2021, the Iowa Supreme Court upheld a portion of a “Ban the Box” ordinance known as the “Fair Chance Initiative” passed in Waterloo, Iowa, that restricted when employers may inquire about the criminal history of job applicants but struck down restrictions on what types of information may lead to adverse action.

“For the reasons discussed herein in more detail, we conclude that the ordinance is preempted to the extent it purports to regulate whether an employer can consider an employee’s criminal history at all—i.e., to the extent it regulates a term and condition of employment,” read the opinion from the Iowa Supreme Court.

“However, it is not preempted where it only regulates timing, because that is not a term or condition of employment. Accordingly, we affirm in part, reverse in part, and remand for further proceedings,” explained the opinion of the court delivered by Edward M. Mansfield, a Justice of the Iowa Supreme Court.

“Ban the Box” is a fast-growing nationwide movement that seeks to advance opportunities for job applicants with criminal records. As of May 2022, 37 states and more than 150 cities and counties have adopted some type of “Ban the Box” legislation, according to statistics from the National Employment Law Project (NELP).

Employment Screening Resources (ESR) – a service offering of ClearStar – offers a white paper titled “Ban the Box Now More the Rule than Exception for Employers when Screening,” a “Ban the Box Resource Guide for States, Counties, and Cities,” and a Ban the Box Resource Page. To learn more, contact ESR today.

NOTE: Employment Screening Resources (ESR) – a service offering of ClearStar – does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

© 2022 Employment Screening Resources (ESR) – A Service Offering of ClearStar – Making copies of or using any part of the ESR News Blog or ESR website for any purpose other than your own personal use is prohibited unless written authorization is first obtained from ESR.

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