Quirky Question #218, Minnesota Ban-The-Box

by Dorsey & Whitney LLP
Contact

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.

© Dorsey & Whitney LLP | Attorney Advertising

Written by:

Dorsey & Whitney LLP
Contact
more
less

Dorsey & Whitney LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!