December 4th, 2019
Bridget Penick and Cara Donels at Fredrikson & Byron
In October, 2019, Waterloo became the first Iowa city to adopt a "Ban the Box" ordinance, following in the footsteps of more than 150 cities across the country adopting similar ordinances. This ordinance is scheduled to go into effect on July 1, 2020. "Ban the Box" is a nationwide movement aimed at giving people with criminal records a second chance by removing criminal records from consideration in the hiring process. The Waterloo ordinance applies to Waterloo employers – including the city of Waterloo – with 15 or more employees. Employers are forbidden from:
An employer who uses an applicant's criminal history in one of these ways could be subject to a fine, payable to the applicant; however, the ordinance does not create a private right of action.
Waterloo employers can still consider an applicant's criminal record (after extending a conditional offer of employment) if the employer has a legitimate business reason, based on the criminal record, to not employ an applicant. The ordinance gives some examples of legitimate business reasons. For instance, if the position would be working with children and the applicant has a sexual abuse charge, the employer may have a legitimate business interest in not hiring the applicant based on the applicant's criminal record. That being said, not every case is cut and dryâ€”the ordinance requires a balancing of many factors, from the nature of the employment to whether the applicant can demonstrate rehabilitation. Employers who believe that an applicant's criminal record would make them unfit for employment should review the factors listed in the ordinance to determine whether, given the circumstances, there is a legitimate business reason to decline to hire based on a criminal record. Finally, Waterloo employers who do consider an applicant's criminal record when declining to hire should fully document the justifications for the decision. In a close case, it may be wise to talk to an attorney.