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City of KCMO Adopts Ban The Box Ordinance for All “Employers”

On February 2, 2018, the City of Kansas City Missouri (“KCMO” or “the City”) adopted a “Ban The Box” ordinance that applies to private employers. The KCMO “Criminal Records in Employment” ordinance enacts a new section, Section 38-104. The ordinance becomes effective on June 9, 2018.  Before this ordinance, private employers located in KCMO were encouraged, but not required, to limit the extent to which they based employment-decisions on an applicant’s criminal history. The new Section 38-104 clearly and unambiguously places limitations on the extent to which all private employers located in KCMO can take an applicant or current employee’s criminal history into account when making employment decisions. (The City has applied a similar rule to its own employment procedures since 2013.). Employers with locations in KCMO should carefully review the ordinance and seek guidance from legal counsel in determining whether, how and when to make inquiries regarding criminal history.

Overview of Ban The Box Laws

Ban The Box laws are laws that place restrictions on an employer’s ability to make employment decisions solely on the basis of a person’s prior criminal history. These statutes are motivated by two ideas. The first idea is that maintaining blanket prohibitions on hiring people who have previously been convicted of a crime artificially and unnecessarily limits the labor supply of qualified individuals available for employment and also increases the number of people who rely on public assistance programs. The second idea is that making it harder for individuals who have previously been convicted of a crime to get a job likely increases the propensity of those individuals to commit more crimes in the future. As a result, Ban the Box laws typically require employers to take a more nuanced view of a person’s criminal history and not automatically reject them solely because the person has a prior conviction.

KCMO’s 2013 Ban The Box Ordinance

In 2013, the KCMO City Council passed an ordinance (Ordinance No. 130230) directing the City Manager to eliminate the field requiring disclosure of past criminal history records from all of the City’s employment applications. Ordinance No. 130230 also required the City to “make final employment-related decisions based on all of the information related to an applicant’s criminal history available to the City, including the nature and gravity of the offense or offenses, the time that has passed since the applicant’s conviction or release from incarceration, the nature of the job sought and its relevance to the offense, and all evidence of rehabilitation.” Notably, Ordinance No. 130230 concludes by stating that the City “urges private employers to adopt fair hiring practices that encourage the rehabilitation of people with criminal records.” (emphasis added). With the 2018 passage of Section 38-104, KCMO is no longer just urging private employers to follow those practices; it is now requiring them to do so.

KCMO’s 2018 Ban The Box Ordinance

Under Section 38-104, it is unlawful for an “employer” (which is defined in Section 38-1(a)(13) as any “person” employing six or more employees) to base “hiring or promotional decisions on an applicant’s ‘criminal history’ or sentence related thereto, unless the employer can demonstrate that the employment-related decision was based on all information available including consideration of the frequency, recentness, and severity of a criminal record and that the record was reasonably related to the duties and responsibilities of the position.” See 38-104(a)(1). Section 38-104 also makes it unlawful for an employer “to inquire about an applicant’s criminal history until after it has been determined that the individual is otherwise qualified for the position, and only after the applicant has been interviewed for the position. Such inquiry may be made of all applicants who are within the final selection pool of candidates from which a job will be filled.” See 38-104(a)(2). However, the new prohibitions “do not apply to positions where employers are required to exclude applicants with certain criminal convictions from employment due to local, state or federal law or regulation.” See 38-104(b).

It is important to note that the term “criminal history” is a term of art that is specifically defined by Section 38-1 (31): “Criminal history means a record of conviction, or a plea of guilty or no contest, to a violation of a federal or state criminal statute or municipal ordinance; records of arrests not followed by a valid conviction; convictions which have been, pursuant to law, annulled, or expunged; pleas of guilty without conviction; convictions for which a person received a suspended disposition of sentence; and misdemeanor convictions where no jail sentence can be imposed.” Additionally, the term “person” is also a term of art defined by the ordinance that specifically excludes local, state, or federal governmental entities from the definition. See Section 38-1(21). Therefore, local, state, and federal governmental entities are not considered “employers” under the ordinance because they are not considered “persons.” However, those entities may still be subject to separate state or federal obligations regarding the use of criminal history information in employment decisions.

The complaint procedure and resolution process for alleged violations of the ordinance are stated in Section 38-23. Similar to charges of discrimination filed under the Missouri Human Rights Act, complaints claiming violations of Section 38-104 must be filed with the Human Relations Department for the City of Kansas City Missouri within 180 days of the alleged discriminatory conduct. See Section 38-23(a)(2). If the City finds probable cause that there is a violation and the matter cannot be voluntarily conciliated then the matter will be referred to the city counselor for possible prosecution in municipal court. See Section 38-23(e).

Key Takeaways

  1. 1. All private employers employing six or more people in the City of Kansas City Missouri are required to follow the new Ban the Box ordinance, Section 38-104.
  2. Under Section 38-104, employers are prohibited from making inquiries into an applicant’s criminal history prior to determining whether the applicant is qualified for the position and until after the applicant has been interviewed for the position.
  3. Under Section 38-104, once a proper inquiry is made, the employer must do a totality of the circumstances review of the person’s criminal history as it relates to the particular job at issue. Unless required to do so by state, federal, or local law, an employer cannot maintain a rule which automatically rejects anyone with a prior criminal conviction.
  4. Once a proper inquiry is made, an employer may maintain a practice of asking all final applicants for their criminal history. However, the information gathered in response must be carefully reviewed and used in the manner described in number 3, above.

This blog post was drafted by Brian Peterson. He is an Associate in Spencer Fane’s Kansas City office. For more information please visit spencerfane.com.