Spotlight on Des Moines' 'Ban-the-Box' Law

​On Nov. 15, 2021, the city of Des Moines, Iowa, passed a "ban-the-box" law to limit employer inquiries and background checks into an applicant's criminal history until after a conditional offer of employment. Though the law was passed and has already taken effect, it has received little fanfare and media attention despite its implications for employers.

The Des Moines city council unanimously passed the ordinance amending its municipal code to make it "illegal and discriminatory" for employers to: (1) include criminal history inquiries on an application, and (2) inquire into criminal history or conduct criminal background checks before a conditional offer of employment.

Under the law, employers may not:

• Include a criminal record inquiry on an employment application.
• Inquire into or make an individual disclose any convictions, arrests or pending criminal charges during the application process, including during an interview.

The law defines the "application process" as beginning when the applicant inquires about the employment being sought and ends when the employer extends a conditional offer of employment. However, the law allows an employer to discuss the criminal record of an applicant if it is voluntarily disclosed by the applicant at an interview.

Additionally, employers are required to comply with all federal and state requirements relating to (1) authorizations for background checks, (2) the pre-adverse and adverse action process, and (3) the use of criminal record information.

A growing number of states and cities have passed ban-the-box laws in recent years aimed at encouraging employers to assess job applicants on qualifications and not a criminal record before denying an offer of employment.

The Des Moines law comes after the Iowa Supreme Court, in June 2021, upheld a provision of a city ordinance in Waterloo, Iowa banning employers from asking about criminal records on employment applications, finding the provision did not conflict with state law.

Key Takeaways

Private employers in Des Moines may want to review their application and hiring processes to ensure they are not engaging in criminal history inquiries or criminal background checks until after a conditional offer of employment.

Gustavo A. Suárez is an attorney with Ogletree Deakins in Greenville, S.C. Christine Bestor Townsend is an attorney with Ogletree Deakins in Milwaukee and Chicago. © 2022 Ogletree Deakins. All rights reserved. Reposted with permission.