Waterloo, Iowa Unfair Use of Criminal Records in Hiring Decisions (Ban the Box) Ordinance

June 28, 2020

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The City Council of Waterloo, Iowa recently enacted the state’s first Ban the Box law. Employers with fifteen (15) or more employees within the City or Waterloo, including the City of Waterloo are subject to the Ordinance. The effective date for this ordinance is July 1, 2020.

According to the new ordinance, it will be an unlawful discriminatory practice for employers to inquire in any manner about the applicant’s convictions, arrests, or criminal charges before a conditional offer of employment, unless the information is provided voluntarily by the applicant before an offer of employment is made. Employers may rescind a conditional offer of employment, but only for a legitimate business reason.

Employers will also be prohibited from making adverse hiring decisions based on:

  • Applicant’s record of arrests and pending charges;
  • Criminal Conviction records that have been erased, expunged, pardoned, or nullified;
  • Applicant’s criminal record without a legitimate business reason.

Under the law, a legitimate business reason consists of the following:

  1. 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 intended employment, taking into consideration the following factors: The nature of the employment; the place or manner in which the employment will be performed; the nature and seriousness of the offense or conduct; the length of time between the conviction or arrest and the application for employment (not including time on probation or parole or the time during which fines or other financial penalties or remedies may be outstanding); the number of 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.
  2. 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 in paragraph a of this section.
  3. 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 or rape, sexual abuse, incest, prostitution, pimping, pandering, assault, domestic violence, kidnapping, financial exploitation, neglect, abandonment, and child endangerment.

Specifically, the new Ordinance states:

B. Prohibited Use of Criminal Record Information: In connection with the employment of any person, it shall be an unlawful discriminatory practice for an employer to engage in any of the following activity:

1. To make any inquiry regarding, or to require any person to disclose or reveal, any convictions, arrests, or pending criminal charges during the application process, including but not limited to any interview. The application process shall begin when the applicant inquires about the employment being sought and shall end when an employer has extended a conditional offer of employment to the applicant. If the applicant voluntarily discloses any information regarding his or her criminal record at the interview, the employer may discuss the criminal record disclosed by the applicant.

2. To make an adverse hiring decision based solely on the applicant’s record of arrests or pending criminal charges.

3. To make an adverse hiring decision based on any criminal records which have been lawfully erased or expunged, which are the subject of an executive pardon, or which were otherwise legally nullified.

4. To make an adverse hiring decision based on an applicant’s criminal record without a legitimate business reason.

Legitimate business reason: A reason for which an employer may make an adverse hiring decision based on an applicant’s criminal record, including the following:

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

b. 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 in paragraph a of this subsection A.9.

c. 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.

d. 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.

Pending criminal charge: An existing accusation that a person has committed a crime, lodged by a prosecutor, law enforcement agency or military authority through an indictment, information, complaint or other formal charge, where the accusation has not yet resulted in a final judgment, acquittal, conviction, plea, dismissal or withdrawal.

Link to Waterloo, Iowa Ordinance: Waterloo, Iowa Ban the Box Law

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The foregoing information is not offered as legal advice but is instead offered for informational purposes. First Advantage Corporation is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship.

The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. First Advantage Corporation makes no assurances regarding the accuracy, completeness, currency or utility of the above information. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly.

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