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Ban the Box - October 23, 2019

There is no question that if you are convicted of a crime, it can become more difficult to obtain a job.  Nationally, community activists, social scientists, and others have been looking at a wide array of ways to address this issue to assist people with prior criminal convictions in obtaining employment. One commonly proposed solution is to “ban the box,” (removing the checkbox from applications asking applicants if they have a criminal record), prohibiting employers from inquiring about criminal convictions during the application process.


Nationally

As of July 2019, approximately 35 states have some form of ban the box policy with some states limiting this to only certain employers, such as public employers. Iowa is not one of those states. 


City of Waterloo

The City of Waterloo, apparently looking to be out front in this area, has recently passed a Ban the Box local ordinance (Amendment to Title V Police Regs. Ch. 3 Human Rights, Section 15). This ordinance prohibits an employer within the City of Waterloo from making “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 of 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.”


State and Local Regulations in Conflict

This local ordinance clearly conflicts with specific Iowa Codes and statutes, primarily those relating to nursing, healthcare facilities including residential care facilities, assisted living facilities, hospices, hospitals and similar industries. These organizations are required by law to include in employment applications a statement inquiring about a record of founded child or dependent adult abuse or convictions of crimes other than simple misdemeanors relating to motor vehicles and the laws of the road.


What happens if Waterloo’s ordinance conflicts with the requirements of the State of Iowa? Typically, state law, particularly well settled state law of this type, takes precedence over a more limited ordinance.  


The ordinance itself is likely not enforceable in industries where there are specific state statutory requirements for background checks or inquiries at the application stage. It should be noted that in a number of states that have adopted ban the box laws, there are exceptions in healthcare, childcare and similar industries because the nature of the work itself.


Negligent Hiring

In the last legislative session, the state created new law relating to negligent hiring which indicates that an employer hiring someone with a criminal record will not be found liable for “negligent hiring” based on the criminal record alone. 


In other words, if an employer hires someone who has had a prior assault but there are no other intervening issues, actions, problems or concerns, the fact of the assault conviction itself does not create liability should the employee get in a future altercation. This statute on negligent hiring is brand new and also contains several caveats and exceptions which may make it less useful to employers who continue to have concerns in this area.


Possible Update in Waterloo

In the days following Waterloo’s passage of the ordinance, a number of healthcare providers have spoken out about the conflict. We understand the city is exploring an amendment to the ordinance, carving out those entities where criminal history information is required by state or federal law. We will post an update if the city passes an amendment. 



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