Employment And Labor Law Alert: Minnesota "Bans The Box"

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On Monday, Governor Dayton signed the Criminal Background Check Act (S.F. No. 523) into law in Minnesota, restricting the circumstances under which employers may request information regarding an applicant's arrests or convictions. Under the new law, public and private employers may not inquire into, consider or require disclosure of an applicant's criminal history until after the applicant has been selected for an interview, or if there is not an interview, before a conditional offer of employment is made. Since 2009, Minnesota law has prohibited public employers from requesting criminal background information on job applications. The new law governing both public and private employers goes into effect January 1, 2014, and will be codified at Minnesota Statutes §§ 364.021, 364.06 and 364.09.

Alleged violations of the law will be investigated by the Minnesota Department of Human Rights. For violations that occur in the first year—before January 1, 2015—the MDHR will issue a written warning. If not remedied within 30 days, or if subsequent violations are found, employers may be assessed a penalty of up to $500 per violation, not to exceed $500 in a calendar month. For violations that occur on or after January 1, 2015, the MDHR will not issue written warnings, and the size of the penalty assessed will vary based on the size of the employer. Employers with more than 20 employees at one or more sites in Minnesota may be assessed up to $500 per violation, not to exceed $2,000 in a calendar month. Notably, the law specifies that the MDHR penalties are the exclusive remedy for violations. Private employers are not "otherwise liable" for failing to comply with the statute; thus, there is no private right of action.

The law provides an exception for employers with a statutory duty to conduct criminal background checks or otherwise consider applicants' criminal history during the hiring process. Therefore, employers hiring for certain types of positions—for example, positions working with children in schools—are permitted to inquire about criminal history at the application phase. However, employers should take care to inquire only about the types of offenses that may be specified by statute, and they should not ask criminal history questions of all applicants, if the employer does not have a statutory duty to conduct background checks for all positions.

Prior to January 1, 2014, Minnesota employers should review their job applications and pre-hire procedures to avoid running afoul of the new law. Importantly, questions regarding an applicant's criminal history should be removed from the initial job application, unless the position is covered by a statutory exception. Criminal history information may be considered later in the hiring process—generally only after applicants are selected for interviews or for conditional offers. See previous Alert on this topic.