Seyfarth Synopsis: St. Louis has become the third locality in Missouri to enact a “Ban the Box” law, joining Kansas City and Columbia. With a January 1, 2021 effective date, covered employers should begin taking steps to bring their hiring practices into compliance.

The St. Louis Ban the Box Ordinance (the “Ordinance”) will restrict private employers in their ability to base hiring or promotion decisions on an applicant’s criminal history. Covered employers that violate the Ordinance could lose their business license and, thus, compliance in this jurisdiction is critical. Such restrictions are not new to the St. Louis area. Indeed, in 2014, St. Louis banned city offices from requiring job applicants to disclose felony convictions, unless the position required a criminal background check. And, in 2018, the St. Louis County Executive issued a similar executive order for county applicants.

Prohibitions on Private Employers

The Ordinance, which applies to private employers in the City of St. Louis with 10 or more employees, makes it unlawful for a covered employer to:

  1. Base a hiring or promotional decision on a job applicant’s criminal history or related sentence, unless the employer can demonstrate that its decision is based on all available information (including the frequency, recentness and severity of the criminal history and whether the criminal record is reasonably related to, or bears upon, the duties and responsibilities of the position).
  2. Inquire into or require applicants to make disclosures regarding their criminal history on initial job application forms and other employer-generated forms used in the initial phase of the hiring process, whether such forms are in hardcopy or electronic format (unless a federal, state or local law bars the employer from employing individuals with certain criminal histories). Instead, employers must wait until after it has been determined that the applicant is otherwise qualified for the position and also has been interviewed for the position. Any such inquiry should be made of all job applicants who are in the final selection pool from which the position will be filled.

Unless the position at issue is subject to a federal, state or local law or regulation that prohibits employers from employing individuals with certain criminal histories, covered employers also may not:

  • Publish written or electronic job advertisements that exclude applicants on the basis of criminal history;
  • Include statements that exclude applicants on the basis of criminal history in written or electronic job application forms and other employer-generated forms used in the hiring process; and
  • Seek to obtain publicly available information concerning a job applicant’s criminal history. Thus, even if an employer does not directly ask a job applicant to self-disclose their criminal history, the employer cannot seek the information from other sources, including a third-party background check report.

In the interim, the Ordinance directs the City’s Office of the License Collector (the “OLC”) to publicize that compliance with the Ordinance will be a requirement for obtaining a business license with the City.

Penalties

Aggrieved individuals may submit a complaint to the Civil Rights Enforcement Agency (the “Agency”), who shall investigate and, if a complaint has merit, make a recommendation to the OLC. The Ordinance requires the OLC and the Agency to coordinate with the Chair of the Committee on Legislation to create rules for the Ordinance’s penalty procedures, which must be presented to the Legislation Committee of the Board of Alderman.

Penalties for ordinance violations are as follows:

  • For a first violation, the OLC will issue a warning to the employer or an order requiring the employer to become compliant with the Ordinance within 30 days.
  • For a second violation, the OLC will issue an order requiring the employer to become compliant with the Ordinance within 30 days and also will impose a civil penalty in an unspecified amount, which will not exceed the maximum amount permitted under the revised code and ordinances of the City of St. Louis.
  • For a third violation, the OLC has discretion to revoke the employer’s business operating license.

Next Steps for Employers

St. Louis employers should determine whether they need to revise job applications, interview guidelines, and policies and procedures for criminal background checks and, if so, should do so before the end of the year.

Employers throughout the United States, and particularly multi-state employers, should continue to monitor developments in this and related areas of the law, including laws restricting the use of credit history information and fair credit reporting statutes, including the Fair Credit Reporting Act.