Mayor Greg Fischer recently signed an ordinance that generally prohibits the Louisville Metro Government (hereinafter, “City”) and its vendors from inquiring into an applicant’s criminal history on the initial job application. 

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), Indianapolis (IN), 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 Louisville Ordinance and proposes best practices for compliance.

Coverage

Under the Ordinance a “vendor” is any person entity, contractor, or supplier of goods and/or services valued at $2,500 or more to the City.  The term “applicant” means any person considered for, or who requests to be considered for, employment by the City or a vendor.  And, “employment” is any occupation, vocation, job, or work for pay, including temporary or seasonal work, contracted work, contingent work, internship; or any form of vocational or educational training with or without pay (except appointed or sworn positions within the City).

Prohibitions and Requirements

Under the Ordinance, vendors who apply for business with the City may not include a “box” or a question regarding prior criminal history on the initial job application, nor may the vendor require the applicant to check or otherwise fill in a “box” or respond to an inquiry regarding prior criminal history on the initial job application, unless as otherwise provided or required by state and federal law.

The Ordinance further provides that the City may not inquire about an applicant’s conviction history until after it has determined that the applicant is otherwise qualified for the position (except as provided by state and federal law).  And that following such a determination, the City still must weight several mitigating factors.¹  Vendors should seek to comply with these requirements imposed on the City, as part of the performance evaluation criteria when awarding City contracts is whether the vendor has adhered to the standards set forth in the Ordinance.

Exemptions

The requirements of the Ordinance do not apply to employment that involves:

• the transfer and handling of cash amounts in excess of $500 or that involve major fiduciary responsibilities, including but not limited to employees charged with investing funds, accounting, and auditing;
• access to confidential information, including but not limited to, social security numbers, bank account information, credit card information, or other combination of information that could be used for identity theft or related criminal activity;
• unsupervised access to children or minors under the age of sixteen (16), developmentally disabled persons or vulnerable adults (this exemption applies even where the employment may involve such access);
• unsupervised access to homes of residents, in which they work alone without direct supervision or they do not work in pairs or teams of employees;
• any company or procurement that may not hire an individual with a felony under federal state and/or local law;
• sole source contracts (i.e., the only capable supplier of a commodity or service within a reasonable geographic area of Metro Louisville);
• sundry items and required advertising (as determined by Kentucky law) as not being practical or feasible to bid;
• federal and state funded projects for bid through which federal or state government procurement processes stipulate that initial applications must include criminal background inquiries;
• any pass through federal and/or state government grants and/or federal and/or state, local program payments or mandates;
• federal, state and cooperative contracts (i.e., contracts that the City can use for volume savings on products, vehicles and required accessories and supplies); or
• other employment positions or categories as determined by law.

Enforcement and Remedies

The City has the authority to deny, rescind, revoke, or terminate or not renew a contract with a vendor in non-compliance.  Moreover, a job applicant with the City or a vendor may file a complaint with the Louisville Human Relations Commission within thirty days after receiving a job application that violates the Ordinance.  The penalty for violating the Ordinance is a misdemeanor that carries a fine of no more than $50 or a period of imprisonment lasting no more than 30 days, or both.  Each day the violation continues constitutes a separate offense.

Takeaways

Unless otherwise exempted, vendors should refrain from asking questions relating to criminal history on the initial job application.  Vendors then should:

• ensure that policies imposing a bar to employment based on any criminal record are narrowly tailored and consistent with local, state, and federal law;
• determine whether criminal 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 criminal records confidential.

_{[1] These factors are similar to the ones enumerated in the Equal Employment Opportunity Commission’s 2012 Guidance and include the following: (i) nature of the crime and its relationship to the job; (ii) information pertaining to the degree of rehabilitation; (iii) time elapsed since the conviction or release, (iv) information produced by the person, or produced on their behalf, with regard to rehabilitation and good conduct; (v) age of the person at the time of occurrence of the criminal offense(s); (vi) gravity of the offense(s); (vii) probation or parole status; and (viii) public policy of the City to encourage the employment of ex-offenders.}