As discussed in a previous article, Minnesota’s “Ban the Box” Legislation Goes Into Effect, Minnesota’s “Ban the Box” legislation went into effect on January 1, 2014. The new law, Minn. Stat. § 364.021, prohibits employers from asking applicants about their criminal histories until either: (1) the interview stage of the hiring process; or (2) once a conditional offer of employment has been made. While seemingly straightforward, there has been some confusion about how, if it at all, Minn. Stat. § 364.021 applies to employers who are statutorily required to conduct criminal background checks.

The Confusion:
According to Minn. Stat. § 364.021, the law “does not apply to . . . employers who have a statutory duty to conduct a criminal history background check or otherwise take into consideration a potential employee’s criminal history during the hiring process.” The plain language of the statute seems to exempt employers who are legally obligated to conduct criminal background checks from the statute’s requirements. In fact, shortly after the “Ban the Box” bill was signed into law, the Minnesota Department of Human Services (“DHS”) informed certain employers in healthcare fields that, because of this statutory language, Minn. Stat. § 364.021 did not apply to them.

The Minnesota Department of Human Rights (“MDHR”) appears to have taken a different position. According to the MDHR, most employers who are statutorily required to conduct criminal history background checks of applicants are not legally required to do so at the initial application stage. See MDHR, Technical Guidance 364.021 , 7 (“[M]any statutes referencing that a criminal background check must be conducted prior to an employee working in the field do not require the employer to inquire at time of initial application.”). According to the MDHR, when this is the case, the employer can wait to conduct the criminal background check until an interview or conditional offer of employment is made and still be in compliance with any law mandating that they consider an applicant’s criminal history. The MDHR’s Technical Guidance 364.021 cites statutes governing the hiring of private detectives and protective agents as an example. “The overall legislative scheme clearly envisions that individuals hired as private detectives and protective agents will be subjected to criminal background checks. However, the subdivision . . . suggests that the timing of the criminal background check will occur after a conditional job offer has been made to the individual.” Id. at 9. The MDHR seems to be suggesting that notwithstanding the broad language of the exemption (referring to employers who must consider criminal history information “during the hiring process”), only those employers who are statutorily required to conduct criminal background checks prior to extending an interview or conditional offer of employment will be exempt from Minn. Stat. § 364.021’s requirements.

For employers who are legally required to conduct criminal background checks, the key is to look at what the relevant statute specifically requires and when the employer is required to consider criminal history information during the entire hiring process. To be clear, Minnesota’s “Ban the Box” legislation does not preempt other laws. Thus, if an employer is legally required to ask about criminal history at the initial application stage, then the employer is almost certainly exempt from Minn. Stat. § 364.021. Conversely, if the employer is required to consider criminal history information only prior to when the employee begins working, the MDHR seems to direct the employer to wait to obtain such information until after an interview or conditional offer of employment has been extended.

After the MDHR spoke on this issue, the DHS followed suit and changed its original position. According to a letter dated December 5, 2013 from the DHS, employers in the healthcare fields must remove questions about criminal history on their employment applications and must wait until later in the hiring process to inquire about applicants’ criminal histories:

In January, all the same employers will still be required to initiate background studies under Minnesota Statutes, chapter 245C, however, employers will not be allowed to have a “box” on the application that asks if an applicant has a criminal history or has committed a specific crime or specific level of crime. Similarly, under the new law, employers will not be able to use a background study conducted by DHS (or other criminal history reviews conducted by another entity) as the first stage of screening applicants for a position.

DHS Letter Dated December 5, 2013 to Care Providers of Minnesota.

Takeaways for Employers:
Employers who are legally required to conduct criminal background checks should review the MDHR’s Technical Guidance 364.021 on the “Ban the Box” legislation thoroughly. Additionally, such employers should carefully review any relevant statutes requiring them to conduct criminal background checks to determine if they are legally required to ask about applicants’ criminal histories on the employment application. If so, such employers can continue to seek criminal history information on the job application notwithstanding the “Ban the Box” legislation. Conversely, if the statute does not specify when the employer must obtain the criminal history information, the most conservative approach would be to wait until the interview or conditional offer stage.

Eventually, the courts might sort out the confusion and indicate whether the position taken by the MDHR and DHS is correct, given that the plain language of the statute seems to exempt employers who have a statutory duty to conduct a criminal history background check at any point during the hiring process.

If you have questions about how Minnesota’s new “Ban the Box” legislation will affect your hiring process or would like guidance on how to ensure compliance with the new law, please contact one of the Minnesota employment law lawyers at Trepanier MacGillis Battina P.A.
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About the Author:
Minnesota employment law attorney Craig W. Trepanier practices extensively in the field of employment law, including advising employers on pre-employment screening and testing practices. Craig may be reached at 612.455.0502 or craig@trepanierlaw.com. Trepanier MacGillis Battina P.A. is a Minnesota employment law firm located in Minneapolis, Minnesota.

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