Missouri ban-the-box rules: state jobs, Kansas City and recruiters

Missouri does not have a statewide ban-the-box law for private employers that we could find. Its statewide rule is Executive Order 16-04, signed in April 2016, which tells executive branch agencies under the Governor's authority to remove criminal history questions from their initial job applications, unless a record would make the applicant ineligible. It does not apply to private companies, and it does not apply to the legislature, the courts, or cities and counties. Kansas City adopted its own ordinance in 2018 that reaches private employers with six or more employees. For recruiters, Missouri is mostly about knowing which of those rules, if any, your client is under.

Executive Order 16-04: state agency jobs

Executive Order 16-04, signed by Governor Jay Nixon on April 11, 2016, orders "that all departments, agencies and boards and commissions in the Executive Branch subject to the authority of the Governor shall take all necessary action to amend initial employment applications by removing questions relating to an individual's criminal history unless a criminal history would render an applicant ineligible for the position." Three more sentences finish it:

• "Nothing herein shall prevent the conducting of a criminal background check as a condition of employment."
• Agencies had to implement it fully within 90 days of signing.
• "This Order shall remain in full force and effect until amended or rescinded by further Executive Order."

The order is narrow. It addresses the initial application only, not interviews, and it sets no point after which questions are allowed. It does not require an individualized assessment or notice, and it creates no complaint process or penalty. It is a directive to state agencies about their own forms. We found no later order rescinding it on the Secretary of State's site, but we could not confirm its current status beyond that.

Who is covered, and what that means for private recruiters

For a private Missouri client outside Kansas City, no state statute we found dictates when it may ask about criminal history. That does not make early questions risk-free. Title VII and the EEOC's guidance on arrest and conviction records still apply, and they look at whether an exclusion is job related, considering the nature and gravity of the offense, the time elapsed and the nature of the job. The FCRA governs any check through a screening company. The practical course for a recruiter is the same as in ban-the-box states: keep criminal history out of your screen and submittal, and leave it to the client's documented process.

Kansas City's ordinance

Kansas City Ordinance 180034, passed in February 2018, added section 38-104, "Criminal Records in Employment," to Chapter 38 of the city code. As passed, it made two practices unlawful, subject to an exception:

1. Basing a hiring or promotional decision on an applicant's criminal history or sentence "unless the employer can demonstrate that the employment-related decision was based on all information available including consideration of the frequency, recentness and severity of a criminal record and that the record was reasonably related to the duties and responsibilities of the position."
2. Inquiring about criminal history "until after it has been determined that the individual is otherwise qualified for the position, and only after the applicant has been interviewed for the position." The inquiry "may be made of all applicants who are within the final selection pool of candidates from which a job will be filled."

The requirements do not apply to positions where employers are required to exclude applicants with certain convictions because of local, state or federal law or regulation. In the same ordinance, Chapter 38 defines an employer as "any person employing six or more employees," and an employment agency as anyone who regularly procures employment opportunities or recruits, refers or places employees. We have not described enforcement or penalties because we did not verify the current Chapter 38 enforcement provisions.

Individualized assessment and notices

Neither EO 16-04 nor Kansas City's section 38-104 requires a written preliminary notice or a response window. Kansas City's ordinance does require the employer to be able to show it considered all available information, including the frequency, recentness and severity of the record, and that the record was reasonably related to the job. Documenting that review, and inviting the candidate to add context, is the practical way to meet it.

Staffing agencies and recruiters

• State agency roles: EO 16-04 is directed at the agencies' own applications. If you supply candidates to a state agency, do not add criminal history questions the agency itself has removed.
• Kansas City roles: Plan on the ordinance's timing: no criminal history questions until the candidate is otherwise qualified and has been interviewed.
• Everywhere else: No state timing rule we found, but keep the topic off your screen and agree with the client who handles background checks and FCRA notices.

How it fits with FCRA adverse action

Whatever local rule applies, a check through a screening company triggers the federal steps: a stand-alone disclosure and written authorization, a pre-adverse action notice with a copy of the report and the summary of rights, a reasonable wait, and the adverse action notice. See the FCRA background check process and background check notification emails.

Questions to settle with a Missouri client at intake

• Is the client a state executive branch agency under the Governor, a city or county, or a private employer?
• Where is the job located? If it is in Kansas City, how many employees does the client have?
• Does any law require the client to exclude applicants with certain convictions from this position? If so, which law and which offenses?
• For Kansas City roles, what is the client's interview, and when does it decide a candidate is otherwise qualified?
• Who orders the background check, who reviews the results against the job, and who sends the FCRA notices?
• Does the client have a written policy on criminal history, and is it applied the same way to every candidate?

Missouri's patchwork makes these answers more important than in states with a single statewide rule. Recording them in the job order lets everyone on the desk handle the role the same way.

A script for Missouri screens

Candidate volunteers a conviction: "Thanks for telling me. That isn't part of my screen, and I won't note it. If the employer looks at background, that's a separate step later."

Kansas City client wants a record question on the phone screen: "Kansas City's ordinance waits until the candidate is otherwise qualified and has interviewed. Let's leave it to your final selection stage."

Private client elsewhere asks if it can ask on the application: "We didn't find a Missouri statute that stops you, but federal rules on how records are used still apply. I'd leave it out of the application and my screen and handle it in your background process."

A Missouri checklist for recruiting desks

1. Identify whether the client is a state executive branch agency, a Kansas City employer with six or more employees, or neither.
2. For state agency and Kansas City roles, remove criminal history questions from applications and screens.
3. For other roles, agree with the client when criminal history is considered and who sends FCRA notices.
4. Keep volunteered details out of notes and submittals. See what not to write in interview notes.
5. For neighbors with statewide private-employer laws, such as Illinois, and the federal picture, see ban-the-box laws and interview questions.