Quirky Question #218, Minnesota Ban-The-Box


Quirky Question:

We are a private employer in the State of Minnesota and are expanding rapidly.  In years past, we have received hundreds, sometimes thousands, of applications for each position advertised.  In an effort to increase efficiency in the identification of qualified candidates, as well as in preparation for an anticipated round of hiring in the New Year, we plan to update our applications for employment.  We would like to incorporate a number of new questions, including whether the applicant has a criminal history.  Are we prohibited from including this question in our application?

Dorsey’s Answer:

In 2013, Minnesota adopted legislation termed the “Ban the Box” bill, which went into effect on January 1, 2014.  The bill prohibits private employers from inquiring into, considering, or requiring disclosure of a job applicant’s criminal records or history until the employer selects the applicant for an interview or employer extends a conditional offer of employment to the applicant.  The bill extends pre-existing statutory provisions that previously applied only to public employers to private employers.  As a result, you (and all other private and public employers in Minnesota) must refrain from including questions concerning criminal history, in any form, on your application for employment.

If you choose to perform criminal background checks as part of your hiring process, you should consider the following:

  • You must abide by the Ban the Box bill;
  • You should ensure that you have a sound and justifiable business reason to conduct pre-employment background checks;
  • You should develop a uniform procedure for conducting criminal background checks and for using the information generated by the checks;
  • You should ensure that you conduct background checks in a uniform and consistent manner;
  • You should refrain from relying on an arrest record alone to support any employment-related decisions as arrests do not provide evidence of criminal activity;
  • You should consider the context of all information revealed by background checks and should provide candidates an opportunity to respond to information revealed by such checks;
  • You should ensure that negative information in a background check renders a candidate unfit for the position at issue and is related to the proposed job prior to making an employment-related decision;
  • You should ensure that your use of background checks is not operating to disparately impact a certain class of candidates over time; and
  • You should document your decision-making processes.

Finally, in addition to monitoring and abiding by state law, employers should be aware of general trends in this area.  In addition to Minnesota, over 50 cities and several states (such as California, Colorado, Connecticut, District of Columbia, Hawaii, Illinois, Maryland, Massachusetts, and Rhode Island), have adopted similar Ban the Box measures applicable to public sector employers and can be expected to revisit the issue of whether the ban should be extended to private employers (Compton, California appears to be the first to do so!).  Other states such as New York, Illinois and the city of Seattle, Washington, have severely limited how and under what circumstances an employer may consider an applicant’s criminal records. Further, entities such as the EEOC, have devoted significant attention to the issue.  For example, the EEOC addressed employer-sponsored background checks and screening tools in its “Strategic Enforcement Plan for Fiscal Years 2013 – 2016” and in a 2012 Enforcement Guidance entitled “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.”  Employers in all states should therefore monitor this area of law for changes and additional developments.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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