Iowa Supreme Court Urged to Strike Down ‘Ban the Box’ Ordinance

An Iowa business association claims a Waterloo city ordinance protecting job applicants with criminal records conflicts with state law.

The Iowa Judicial Branch building in Des Moines, home of the Iowa Supreme Court and Iowa Court of Appeals. (Courthouse News photo/Rox Laird)

DES MOINES, Iowa (CN) — An Iowa city’s ordinance that initially bars employers from checking job applicants’ criminal records should be struck down because it conflicts with state and federal law, an Iowa business group told the state’s high court Wednesday.

The Waterloo City Council passed the ordinance in 2019 inspired by the “ban the box” movement that protects job applicants from being denied jobs based on their criminal records, which most directly impacts members of minority groups. Waterloo has the highest percentage of African Americans of any city in Iowa, and Blacks make up 40% to 60% of inmates at the Black Hawk County Jail at any given time.

The ordinance provides that an employer cannot include a criminal record inquiry on an employment application – the “box” asking if the applicant has been charged or convicted of a crime. Also, an employer with more than 15 workers cannot inquire about an applicant’s criminal history during the initial hiring process prior to a conditional offer of employment.

Nor can those employers make “any adverse hiring decision based upon the following: (1) the applicant’s arrest/criminal history which has not resulted in a conviction; (2) criminal records or convictions which have been expunged or legally nullified; and (3) criminal records or convictions without a legitimate business reason.”

The Iowa Association of Business and Industry, or ABI, the state’s largest statewide business organization with more than 1,500 member companies representing 330,000 workers, sued the city of Waterloo and its Commission on Human Rights, arguing that the city’s ordinance runs afoul of a state law enacted in 2017.

That law says that “a city shall not adopt, enforce, or otherwise administer an ordinance, motion, resolution, or amendment providing for any terms or conditions of employment that exceed or conflict with the requirements of federal or state law relating to a minimum or living wage rate, any form of employment leave, hiring practices, employment benefits, scheduling practices, or other terms or conditions of employment.”

Black Hawk County District Judge John Bauercamper dismissed the ABI’s complaint on summary judgment in April 2020.

Bauercamper wrote that preemption is the “fighting issue” in the case, which means that a superior level of government – in this case, the Iowa Legislature – has retained the exclusive authority on a certain subject, prohibiting an inferior level of government – Iowa municipalities – from regulating or acting on that subject.

The ABI argued Waterloo’s ordinance is preempted by the 2017 state statute regulating terms and conditions of employment, including “hiring practices.” Bauercamper concluded, however, that the city ordinance was properly adopted through its “home rule” powers under the Iowa Constitution and the Iowa Civil Rights Act.

Des Moines lawyer Ryan Koopmans of the firm of Belin McCormick, who represents the ABI in this case, told the Iowa Supreme Court justices on Wednesday that the trial court ruling should be reversed.

“The district court found, and Waterloo argues, that the ordinance does not exceed state or federal law, and that is clearly wrong,” Koopmans said.

Moreover, he argued that the ordinance is not saved by the state’s civil rights law.

“The Iowa Civil Rights Act does not grant authority to do anything,” he said. “You have to find that power somewhere else, and there is no antidiscrimination exception” in the 2017 statute.

Cedar Falls, Iowa, lawyer Timothy Boller of Weilein & Boller, who represented the city in Wednesday’s oral argument, told the justices that the “Iowa Civil Rights Act expressly authorizes the city of Waterloo to do with they did in this ordinance.”

“The ordinance does not tell anyone they cannot consider criminal history,” he said. It is just a “tool to delay that consideration to give these folks a fair chance so that other factors, other attributes of the employee, are being considered. You know, this isn’t some sort of rogue ordinance. This isn’t – with all due respect to Santa Cruz, California – we’re not trying to ban nuclear weapons in Waterloo. This is an ordinance that has been adopted by nearly 200 state and local governments.”

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