Mayor Gregory A. Ballard recently signed an ordinance that generally prohibits the Consolidated City of Indianapolis and Marion County (hereinafter, “City”) and its vendors from inquiring into an applicant’s criminal history until after the applicant’s first interview.  In addition to “banning the box,” the Ordinance further restricts the types of arrest and conviction records the City or its vendors may ask about or otherwise consider following the first interview.

The Ordinance joins an ever-growing patchwork of laws that curbs inquiries into or the use of an applicant and/or employee’s criminal history in employment decisions.  Indeed, approximately 10 states and 50 localities have “banned the box” and, although many of these laws only apply to public employers, several local ordinances cover government contractors in particular, including in Compton (CA), Richmond (CA), Hartford (CT), New Haven (CT), Boston (MA), Cambridge (MA), Worcester, (MA), Detroit (MI), Atlantic City (NJ), New York City (NY), and Pittsburgh (PA).  Nine other jurisdictions—Hawaii, Massachusetts, Minnesota, Rhode Island, as well as the Cities of Philadelphia (PA), Newark (NJ), Buffalo (NY), Seattle (WA), and San Francisco (CA)—also have “banned the box” for private employers (either expressly or implicitly covering government contractors).  And, many more jurisdictions have imposed other limitations on criminal background checks for private and public employers, as well as for city vendors.

This post examines the obligations that vendors face under the new Indianapolis Ordinance and proposes best practices for compliance.

Coverage

The Ordinance defines “vendor” as any person or entity that employs the equivalent of ten (10) or more full-time employees in its total workforce and that holds or enters into a contract with the City.  The term “employee” means any person engaged in the operation or conduct of any business, whether as owner, any member of the owner’s family, partner, associate, agent, manager, or representative, and any and all other persons engaged or employed in said business.

The Ordinance also defines the term “employment” to include any occupation, vocation, job, work for pay or employment, including temporary or seasonal work, contracted work, contingent work and work through the services of a temporary or other employment agency; or any form of vocation or educational training with or without pay (excluding membership in any law enforcement agency).

Under the Ordinance, an “applicant” is broadly defined as any person considered, or who requests to be considered, for employment by the City or vendor.

Prohibitions and Requirements

The Ordinance specifically prohibits vendors from including a “box” or any inquiry on printed and/or online application forms regarding an applicant’s prior criminal history. The Ordinance also makes it unlawful for vendors to inquire about, require to reveal, or take an adverse employment action upon, any arrest or criminal accusation that is not then pending and that did not result in a conviction.  Moreover, during the application process,^[1] as well as before and during the applicant’s first interview, vendors may not inquire about, or require applicants to disclose or reveal, any criminal convictions.  The Ordinance broadly defines the term “interview” as any direct contact by the vendor with the applicant, whether in person or by telephone, to discuss the employment being sought or the applicant’s qualifications.

Significantly, if a vendor does not provide an applicant with the opportunity to interview, it may never inquire into or otherwise gather any information about the applicant’s criminal history.^[2]  Although the Ordinance allows inquiries into an applicant’s criminal history after a first interview, it still requires that vendors weigh the following mitigating factors enumerated in the Equal Employment Opportunity Commission’s 2012 Guidance: (1) whether the applicant committed the offense (if only an arrest); (2) the nature and gravity of the offense; (3) the time since the offense; and (4) the nature of the job for which the applicant has applied.

Exemptions

The Ordinance contains exceptions.  For instance, vendors may ask about convictions or violations that otherwise serve as a bar to employment under state or federal law (including for positions that involve work with children and positions in law enforcement).  In addition, vendors hiring for licensed trades or professions, including positions such as interns and apprentices for such licensed positions, may ask applicants the same questions asked by the trade or professional body, in accordance with state law.

Enforcement and Remedies

When vendors violate the Ordinance, the City may deny awards of contracts.  Vendors also may incur a fine of no more than $2,500 for a first violation and $7,500 for a second or subsequent violation.  In addition to the foregoing penalties, the City may take “appropriate action” to enjoin or abate any violation of the Ordinance.

Takeaways

Unless otherwise exempted, vendors should refrain from asking questions relating to arrests and/or convictions until after the applicant’s first interview.  Vendors also should:

• ensure that policies imposing a bar to employment based on any conviction or arrest record are narrowly tailored and consistent with local, state, and federal law;

• determine whether arrest and conviction records are considered in a manner that is job related and consistent with business necessity;

• train hiring managers on the appropriate use of criminal history in hiring, promotion, and separation;

• adhere to the federal Fair Credit Recording Act and any state equivalent, as well as any other federal, state, and local requirements, before conducting background checks and taking adverse action against applicants or employees based on their criminal history; and

• keep information about applicants’ and employee’s conviction and arrest records confidential

_{[1] The Ordinance defines the “application process” as beginning when the applicant inquires about the employment being sought and ending when the vendor has accepted an employment application.}

_{[2] This proscription ostensibly attempts to ensure that an applicant with a criminal record is not automatically disqualified before having had the chance to interview with the vendor.}