Minnesota Employers Must Revise

Employment Applications by January 1, 2014

Now is the time to review your existing employment applications and bring them into compliance with Minnesota's new "Ban the Box" law, which becomes effective January 1, 2014.  The new law prohibits all Minnesota private employers from inquiring into, considering or requiring disclosure of the criminal record or criminal history of an applicant for employment until the applicant has been selected for an interview or, if there is not an interview, before a conditional offer of employment is made to the applicant.  The new law does not apply to private employers with a statutory duty to conduct a criminal history background check or otherwise take into consideration a potential employer's criminal history during the hiring process, such as teachers, school bus drivers, alcohol and drug counselors and many others.   

The purpose behind the new law is to encourage the rehabilitation of criminal offenders, the majority of whom have convictions for non-violent crimes.  Additionally, criminal record exclusions have been shown to have a disparate impact based on race and national origin.  Employers still may ask and consider an applicant's criminal history but the new law changes the timing of when that request occurs.  Employers are advised to also consider the Equal Employment Opportunity Commission's recently published Consideration of Arrest and Conviction Records in Employment Decisions. 

Employers are advised to remove any questions about criminal background on the initial employment application or online application.  The law allows an employer to notify applicants on the application form that the law or an employer's policy will disqualify individuals with a particular criminal history background in certain positions.

The new law does not create a private cause of action, however, private employers in violation of the new law could face fines.  The Minnesota Department of Human Rights is responsible for enforcing the law.  During the first year in effect, the Commission will provide a written warning for the first violation which, if not remedied within 30 days of the issuance of the warning, will be subject to a $500 fine.  There are additional monetary fines for violations occurring in 2015 and after.