On April 11th, Missouri Governor Jay Nixon signed an executive order requiring that state departments, agencies, and boards and commissions under the executive branch remove questions about criminal history from the initial job applications of prospective employees. Missouri joins 22 other states that have already implemented such policies, and similar policies have previously been in place for government job applicants in Kansas City, Missouri and St. Louis. The city of Columbia has gone even one step further and banned the box not only for municipal jobs, but for private sector jobs as well.

As we discussed in an earlier post, where ban-the box laws apply, it is expected that an employer will make a conditional job offer to an applicant, without having inquired about his or her criminal past. The inquiry can then be made later in the hiring process, and if a criminal conviction is disclosed, it will then be up to the employer to decide if the conviction disqualifies the candidate for the position.

Some easy examples: a convicted embezzler need not be hired as a bookkeeper; a convicted child abuser need not be hired at a day care center; but someone convicted of assault in a bar-room brawl should not be disqualified from a job as a warehouse worker. How long ago an applicant’s conviction occurred will also be a relevant factor for an employer to consider.

The underlying legal concern with the use of arrest and conviction records in the hiring process is that use of criminal history that is not truly and directly job-related may result in the disproportionate exclusion of minority candidates. These concerns are reflected in the EEOC’s 2012 “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.”

The full text of Missouri Executive Order 16-04 is available here.