Most employers that hire in Minnesota and seek information during the application process about a candidate's criminal record must comply with new rules effective January 1, 2014. This so-called “ban the box” law affects most employers requiring candidates to disclose any record of a criminal conviction on an employment application¹
. As we explain below, it is important to understand that Minnesota is not "banning the box," only delaying when an employer can make the inquiry. We recommend that employers act sooner than the effective date of the new law to implement changes to their hiring practices.
Governor Dayton has signed into law S.F. 523, which prohibits employers from inquiring into, considering, or requiring an applicant to disclose a criminal record or criminal history until (1) after the employer has selected the applicant for an interview, or if there is no interview, (2) the employer makes it a condition of a conditional offer of employment to the applicant. This is really a timing statute
. It only delays the inquiry until after inviting the candidate to interview or making it a term of a conditional offer of employment. It does not prohibit lawful inquiries about conviction records or considering them in the hiring process. The intent of the law is to give the applicant an opportunity to explain any criminal history before an employer considers whether it should affect a hiring decision.
The Minnesota Department of Human Rights will enforce the new law. The financial penalties for violations are relatively modest (up to $500 per violation, not to exceed $500 in a calendar month) until December 31, 2014; penalties thereafter range depending on the size of the employer, from $100 to $500 per violation, not to exceed $100, $500, or $2,000 in a calendar month. However, the Department of Human Rights has broad investigation authority, and we recommend compliance with the new law to avoid inviting greater scrutiny of other hiring practices.
Our Other Recommendations
Because this is a timing law
, employers need written evidence that they either invited the applicant to interview or extended a conditional offer before inquiring about the applicant's criminal record. There are two recommended ways to do so, depending on whether the employer desires to ask about criminal convictions on the employment application form or in some other manner early in the process.
- Employers can simply take the question about criminal convictions off of their applications, and not even make the inquiry in writing or verbally, until during or after the interview or in a conditional job offer. For an interview, we recommend a dated letter or email to the candidate scheduling the time and date for the later meeting, with no mention of a criminal background check. (Also, do not address the issue on the phone or other conversation setting up the interview.) For the conditional job offer, we recommend that it be dated and in writing and only then inform the candidate that a satisfactory criminal record is a condition of the offer.
- Employers that prefer to include the question about criminal convictions on their application must establish that the date on which they invited the applicant to interview or extended the conditional offer was before the applicant completed the application form. This also requires creating documentation with dates. The email or dated letter inviting a candidate to interview, or extending the written conditional offer of employment, must predate the candidate's signature on the application. The employer can also request a written confirmation from the applicant to acknowledge receipt of the invitation to interview or conditional offer and require him/her to then sign, date, and return the employment application form or date the acceptance of the conditional offer after the date of the employer's communication. (Note, employers should make sure that the candidate remembered to date the application or acceptance of the conditional job offer before submitting it.)
Employers should be mindful that federal law prohibits employment decisions based on arrest records, and requires an individualized assessment of whether a conviction record may lawfully justify disqualifying a particular candidate for the available position. For further information on what employers may legally do under federal law with disclosures of conviction records after complying with the new Minnesota state law timing rules, go to our May 3, 2012 Legal Alert
Rules pertaining to inquiries about criminal histories also vary depending on the applicable federal or state law. Employers should make certain their policies and practices comply with the law in all of their locations in the United States and abroad.
We Can Help.
Maslon's Labor & Employment Law Group
can answer any questions employers have about this important new legal development, including providing suggested language for employer communications, application forms, and conditional job offers. We also can advise employers that need information for legal compliance anywhere outside of Minnesota.
The law does not apply to employers that have a statutory duty to conduct a criminal history background check or otherwise consider an applicant's criminal history during the hiring process. In addition, the law does not apply to certain industries, including school districts and juvenile corrections employment. Finally, the law does not apply to licenses to practice medicine or chiropractic that have been denied or revoked, the licensing process for peace officers, law enforcement agencies, fire protection agencies, emergency medical services, and jobs where individuals work with vulnerable adults and children, and eligibility for private detective or protective agent licenses, school bus driver endorsements, special transportation service endorsements, and commercial driver training instructor licenses.