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March 2, 2018

The City of Kansas City, on February 2, 2018, adopted an ordinance that limits the extent to which private employers (i.e. any person employing 6 or more employees) in Kansas City may use an applicant’s criminal history (as that term is defined by Section 38-1(31)) when deciding to hire or promote.  Section 38-104 is an expansion of Kansas City’s 2013 “ban the box” rule, which restricted the city’s use of criminal histories but merely “urged” private employers to “adopt fair hiring practices that encourage the rehabilitation of people with criminal records.” Section 38-104 now requires private employers to follow the same restrictions. The new rule takes effect on June 9, 2018.

Under Section 38-104, private employers will be prohibited from making inquiries into an applicant’s criminal history until after it “has been determined that the individual otherwise qualifies for a position, and only after the applicant has been interviewed for the position.” See Section 38-104(a)(2). Once an investigation has occurred, employers are required to make any individualized assessments based on all the available information, including the “frequency, recentness, and severity of a criminal record and that the record was reasonably related to the duties and responsibilities of the position.” See Section 38-102(a)(1). These rules will not apply to positions where employers are required to exclude applicants with certain criminal convictions due to local, state, or federal law or regulation. See 38-104(b).

Violations of the new ordinance may result in the same remedies as for other Human Relations Act violations, including civil penalties, reinstatement, back pay, and actual damages.

Kansas City employers should ensure that all application materials are updated to reflect the new ordinance and that all HR and recruiting personnel are well versed in its requirements. Employers should post-pone inquiries into criminal histories until after the applicant’s qualifications are confirmed and an interview has been conducted. Assessments based on criminal histories should take into consideration all available information, and should consider how the criminal record relates to the position in question. Proper documentation and procedures should be maintained and followed throughout the hiring process.

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