Des Moines Enacts ‘Ban-the-box’ Ordinance

On November 15, 2021, the city of Des Moines, Iowa, passed a “ban-the-box” ordinance limiting an employer’s ability to inquire about and conduct background checks into applicants’ criminal histories until after a conditional offer of employment has been made. Although the ordinance was passed several months ago, it received little attention, despite its requirements and ramifications for employers.

The law, amending existing municipal code, makes it illegal and discriminatory for employers to:

1. Include criminal history inquiries on an application.
2. Inquire about or make an individual disclose criminal history or conduct criminal background checks before a conditional offer of employment, including during an interview.

The law also defines the application process as starting at the time the applicant first inquires about the position and ending when the employer extends a conditional offer of employment. The ordinance does allow a discussion of a criminal record if the applicant voluntarily discloses its existence during an interview.

Des Moines’ amended ordinance does not release employers who conduct background checks from the obligations of any state laws, or the requirements of the federal Fair Credit Reporting Act related to (1) authorization by the candidate to conduct a background check, (2) the pre-adverse and adverse action process, and (3) the legal use of criminal record information.

Des Moines joins the city of Waterloo in implementing a ban-the-box ordinance in Iowa. Waterloo’s ordinance was challenged in the courts, and in June 2021 the Iowa Supreme Court upheld a provision that bans employers from asking about criminal records on employment applications.

Key Takeaways

Des Moines private employers may want to review their interview processes and employment applications to ensure they do not include requests for criminal histories. A sample application is available on MRA’s website. Employers may wish to consider training managers and others who will conduct interviews on the application and interview process to help avoid inquiries into criminal histories or conduct background checks until after a conditional offer of employment is made.