Background Checks
A significant number of employers use background checks as part of their employment application process. Different federal, state, and local laws govern background checks and the requirements that apply to their use vary throughout the country. The Fair Credit Reporting Act (“FCRA”) sets minimum standards regarding the use of information contained in consumer reports, including conviction and arrest records. See our Employment Screening page for more information. Other federal, Missouri, and local laws are addressed here.
Disparate Treatment of Potential Employees Under Title VII
A covered employer may be liable for violating Title VII of the Civil Rights Act of 1964 if it treats a prospective employee differently because of his or her race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). For example, the following scenario may lead to a claim of disparate treatment under Title VII: two men with similar educational and work backgrounds apply for a position. Both have a conviction for possession of marijuana during college. Based on their background checks, the company declines to employ the African American applicant due to his conviction, but hires the white applicant. If all else is equal, the African American applicant may have a claim against the company under Title VII for disparate treatment based on race.
Missouri Background Check Laws
In April 2016, Governor Jay Nixon issued an executive order in Missouri that prevents state departments, boards, and commissions under the executive branch from asking job applicants about their criminal history in initial job applications. See Executive Order No. 16-04. The order only applies to these state employers and does not cover private, local government, or other state government employers. Missouri does not otherwise have a state statute governing use of background checks in employment and private employers may require applicants to undergo background checks or disclose criminal convictions.
Professional licensing laws in Missouri touch upon the use and legal effect of prior criminal backgrounds. Missouri law prohibits state and local boards and agencies that license applicants for occupations and professions from “deny[ing] a license to an applicant primarily upon the basis that a felony or misdemeanor conviction of the applicant precludes the applicant from demonstrating good moral character” if the applicant has been released from incarceration or did not violate probation. § 314.200 RSMo. A state agency may not deny a license based on lack of “good moral character based solely on [an applicant’s] extensive history of felony criminal convictions.” Missouri Real Estate Commission v. Held, 581 S.W.3d 668, 676 (Mo. Ct. App. 2019) (granting probated license to applicant with 21 felony convictions). A separate statute prohibits denial of a license for any occupation or profession “solely on the grounds that an applicant has been previously convicted of a felony.” § 324.029 RSMo.
The board or agency “may consider the conviction as some evidence of an absence of good moral character, but shall also consider the nature of the crime committed in relation to the license which the applicant seeks, the date of conviction, the conduct of the applicant since the date of the conviction and other evidence as to the applicant’s character.” § 314.200 RSMo. However, state agencies may deny licensure based upon certain prior convictions, such as those relating to the performance of the duties of a profession, convictions involving dishonesty, or convictions involving moral turpitude. See, e.g., § 339.100.2 RSMo.
Local Background Check Laws in Missouri
The cities of St. Louis and Kansas City recently enacted ordinances prohibiting employers from basing promotions or hiring decisions on an individual’s criminal history. These are commonly referred to as “ban the box” laws. In St. Louis, employers with ten (10) or more employees cannot ask about criminal history on employment applications, starting in 2021. Employers cannot ask about or investigate an applicant’s criminal history until after the applicant is interviewed. If the employer then chooses to inquire into criminal histories, it must do so for all applicants. Violations can result in warnings, civil penalties, or revocation of a business license. See Ordinance No. 71074. Executive orders in St. Louis and St. Louis County also prohibit inquiry into criminal histories for executive branch employees of both jurisdictions. Kansas City’s ordinance is similar but applies to employers with six (6) or more employees. A violation can result in a 30-day revocation of an employer’s business license. In addition, Columbia, Missouri has a ban-the-box ordinance. It is thus important to retain or consult with an attorney in order to understand whether your given city or municipality has similar rules in effect.
Employer Consultations
Employers need to understand applicable laws and their obligations with respect to background checks. Requirements vary in every jurisdiction and employers must navigate federal, state, and local laws. Failure to understand applicable legal requirements could result in costly litigation and liability for substantial damages. Consultation with an attorney who is experienced in this area can ensure compliance with relevant laws. The Firm’s attorneys are available for consultations and employee training that will explain your rights and obligations. Contact our attorneys today for a consultation designed to ensure your rights and interests are protected.
Contact Us
Contact Dolley Law, LLC to learn more about your legal rights and duties in the context of conducting background checks by calling (314) 645-4100 or emailing kevin@dolleylaw.com.