Minnesota Department of Human Rights Releases "Ban the Box" FAQs for Private Employers | Practical Law

Minnesota Department of Human Rights Releases "Ban the Box" FAQs for Private Employers | Practical Law

The Minnesota Department of Human Rights has released guidance on Minnesota's recently signed criminal background check bill, which expanded Minnesota's existing "Ban the Box" law to private employers effective January 1, 2014.

Minnesota Department of Human Rights Releases "Ban the Box" FAQs for Private Employers

by Practical Law Labor & Employment
Published on 02 Jun 2014 • Minnesota
The Minnesota Department of Human Rights has released guidance on Minnesota's recently signed criminal background check bill, which expanded Minnesota's existing "Ban the Box" law to private employers effective January 1, 2014.
The Minnesota Department of Human Rights has released guidance on Minnesota's recently signed criminal background check bill, which expanded Minnesota's existing "Ban the Box" law to private employers effective January 1, 2014.
Of particular note, the guidance confirms that the Ban the Box law does not require an employer to hire an individual with a criminal record. However, the law does require employers to wait until the applicant has been selected for an interview, or before a conditional job offer has been extended, before inquiring about the applicant's criminal history.
In addition, the guidance clarifies the following points:
  • The Ban the Box law does not:
    • compel employers to interview individuals who have a criminal record; or
    • prevent employers from conducting a criminal background check before hiring an applicant.
  • All Minnesota employers are covered under the new law regardless of their size.
  • If an employer is prohibited under federal or state law from hiring an individual who has been previously convicted of a crime, the employer is still obligated to continue to follow federal or state law.
  • Ban the Box law exempts private employers if the employer is specifically directed to:
    • conduct a criminal history background check; or
    • gather information to allow a licensing authority to conduct a criminal history background check.
  • Exempt private employers may have an application that states that applicants may be disqualified from employment for having previously committed a particular crime.
  • The point in time during the interview process that an employer can obtain criminal history information from an applicant depends on whether the employer is going to interview candidates before determining who to hire for the open position. If the employer does conduct interviews before an applicant is hired, the employer should initiate a criminal background check after it has decided to interview that applicant. If the employer doesn’t conduct interviews before hiring an applicant, the employer may initiate a criminal background check after it decides to extend a conditional offer of employment to the applicant.
  • Ban the Box applies to the Minnesota operations of all companies, even if they operate in multiple states.
  • A multi-state employer may use one electronic application as long as it provides clear, unambiguous language stating that under Minnesota law, applicants don’t have to answer criminal background history questions.
  • The use of criminal background information by an employer to eliminate candidates may be discriminatory if:
    • the policy has a disproportionate impact on a class of individuals;
    • the employer does not use a targeted screen; and
    • the employer fails to provide the applicant with an opportunity to respond.
  • The Minnesota Department of Human Rights enforces Minnesota's Ban the Box law. Employees do not have any private cause of action.
  • Employers that violate the law during 2014 will receive a written warning before any fine. If a first violation is not remedied within 30 days of the warning, the commissioner may impose a fine of up $500. For violations that occur in 2015, the fine is up to:
    • $100 for each violation for employers that employ ten or fewer persons at a site;
    • $500 for each violation for employers that employ 11 to 20 persons at a site; and
    • $500 for each violation for employers that employ more than 20 persons at one or more sites.
  • The EEOC published guidance for employers on conducting criminal background checks on April 25, 2012.
For more information on Minnesota's criminal background check bill, see Legal Update, New Minnesota Law Will Render Most Employment Applications Now in Use Unlawful.