On January 1, 2014, Minnesota’s new “Ban the Box” law went into effect. Governor Dayton signed the bill into law on June 5, 2013. The new law, Minn. Stat. § 364.021, limits employers’ ability to ask applicants about their criminal histories. Specifically, employers cannot ask applicants to provide criminal history information on the initial employment application. Historically, many employers would include a box on their employment application to be checked if the applicant had been convicted of a crime (hence, the bill is commonly referred to as “Ban the Box”). Under the new law, an employer may ask about an applicant’s criminal background only once the applicant receives an interview, or if the employer does not conduct interviews, once the applicant receives a conditional offer of employment. Minnesota employers should update their employment applications to comply with the new law.

Why Was the “Ban the Box” Legislation Enacted?
Prior to the new law, many employers asked applicants to check a box on the employment application indicating whether or not they had any criminal convictions. As a result, many applicants with criminal histories would be screened out of the hiring process before the interview stage. The purpose of the new law is to open up employment opportunities for individuals with criminal backgrounds. The law encourages employers to make individualized assessments when making hiring decisions rather than immediately rejecting applicants with criminal histories.

What Does the “Ban the Box” Legislation Provide?
The “Ban the Box” legislation states that “[a] public or private employer may not inquire into or consider or require disclosure of the criminal record or criminal history of an applicant for employment until the applicant has been selected for an interview by the employer or, if there is not an interview, before a conditional offer of employment is made to the applicant.” Minn. Stat. § 364.021(a).

The law goes on to provide, however, that “[t]his section does not prohibit an employer from notifying applicants that law or the employer’s policy will disqualify an individual with a particular criminal history background from employment in particular positions.” Minn. Stat. § 364.021(c).

Which Employers Are Subject to the New Law?
Public employers have been prohibited from inquiring about applicants’ criminal backgrounds on employment applications since 2009. The new law expands the scope of this requirement to include private employers.

How Does the Law Affect Employers Legally Required to Conduct Criminal Background Checks?
The new law states that it “does not apply to the Department of Corrections or 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.” Nonetheless, there is some confusion about whether such employers should still wait until conducting an interview or extending a conditional offer of employment before seeking criminal background information. According to the Minnesota Department of Human Rights (“MDHR”), employers who are statutorily required to consider applicants’ criminal histories are still able to do so under the new legislation, but must wait until the applicant receives an interview or conditional offer of employment. Until the impact of the new law is resolved by the courts, the most conservative practice would be to follow the MDHR directive.

What Are the Penalties for Violating the Law?
For violations that occur in 2014, employers could face fines of $500.00 per violation. For violations that occur on or after January 1, 2015, employers will be subject to fines between $500.00 and $2,000.00 depending on the size of the employer. See Minn. Stat. § 364.06.

What Should Employers Do to Comply With the Law?
Employers should review their job applications and hiring policies to ensure compliance with the “Ban the Box” legislation and other applicable state and federal anti-discrimination laws. If you have questions about the new law or would like additional information, please contact one of the employment law attorneys at Trepanier MacGillis Battina P.A.

Where Can Employers Obtain More Information?
The MDHR has created a “toolkit” to educate employers about the new law, including an informational video, a Frequently Asked Questions page, and a historical overview of Minnesota’s use of criminal background checks in employment. Employers should consult these helpful resources when updating their hiring practices.
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About the Author:
Trepanier MacGillis Battina P.A. 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.