Minnesota Enacts “Ban the Box Law" Prohibiting Employment Application Criminal History Checkmark Boxes and Restricting Criminal Record Inquiries Until After Interviews or Conditional Job Offers

by Littler

Effective January 1, 2014, recent amendments to Minnesota law will restrict the timing of pre-employment inquiries by most private employers into a candidate’s criminal past.  Employers who are not exempted from the law may not (1) inquire into or consider or require disclosure of criminal record information until the applicant has been selected for an interview or, if there is not an interview, until a conditional job offer of employment has been extended to the applicant, and (2) use any form of employment application that seeks such criminal record information.

The new law does not outright preclude inquiries into or consideration of an applicant’s criminal past.  Representative Tim Mahoney, who sponsored the legislation, has stated that the law “does not prohibit private employers from eventually conducting background checks and fully investigating the criminal past of potential employees,” but, “is designed to get applicants past the initial application stage, so that if they qualify for the job, they get a chance to explain themselves.”  Further, the statute expressly states that it does not prohibit an employer from notifying applicants that either law or the employer’s policy will disqualify an individual with a particular criminal history background from employment for particular positions.

These new pre-employment restrictions, which previously applied only to public employers, reflect the trend towards so-called “Ban the Box” laws in some jurisdictions.1  The Equal Employment Opportunity Commission (EEOC) has likewise suggested or endorsed this approach in its updated guidance regarding consideration of arrest and conviction records under Title VII of the Civil Rights Act of 1964.2


The statute does not afford a private right of action.  Rather, violations by public employers are processed and adjudicated under Minnesota’s Administrative Procedures Act, and violations by private employers will be investigated by the Minnesota Commissioner of Human Rights (Commissioner).  If the Commissioner finds a violation during the first year the law is in effect, the Commissioner will issue a written warning and may also impose a maximum penalty of $500 per violation, not to exceed $500 per calendar month.  After the law has been in effect for a year, the Commissioner will no longer issue written warnings and the penalty, depending on the size of the employer, will be either $100 or $500 for each violation, with $100, $500 and $2,000 per month caps per calendar month.

Protections for Employers

The amended statute also affords protections to employers by limiting the admissibility of evidence of an employee’s criminal history in civil litigation against the employer in the circumstance where:

  • the civil action is based on the employee’s conduct (whether a current or former employee at the time of the civil action); and
  • the duties of the employee’s position did not pose particular risk to others; or
  • before the occurrence of the conduct at issue in the civil action, a court order sealed the criminal record or the employee received a pardon; or
  • the record is of an arrest or charge that did not result in a conviction; or
  • the action is based solely on the employer’s compliance with the new restrictions imposed by the statutory amendment.

These protections reflect an effort by the Legislature to balance the competing risks to employers, i.e., avoiding violations of the fair employment laws, on the one hand, and avoiding negligent hiring risks, on the other hand.  A handful of states have enacted similar protections (e.g., Ohio).3

Action Steps for Employers

Minnesota and multi-state employers need to consider whether their uniform job application and backgrounds check inquiries comply with applicable law, including Minnesota’s new law.   Given all of the recent attention on background checks by the EEOC, other agencies and plaintiffs’ lawyers, this is also a good time for employers to review their application and hiring process.  This process review should consider restrictions on use of criminal information under EEOC guidance and certain state laws (e.g., Indiana)4 and use of credit information under others (e.g., Colorado),5 and also should ensure federal and state Fair Credit Reporting Act compliance.6

1See Rod Fliegel, Jedd Mendelson, and Jennifer Mora, Employers in Newark, New Jersey Must Comply with a New Ordinance Broadly Restricting Their Discretion to Rely on Criminal Records for Employment Purposes, Littler ASAP (Oct. 22, 2012); Christopher Kaczmarek, Carie Torrence, and Joseph Lazazzero, Massachusetts Employers Face New Obligations When Conducting Background Checks Involving Criminal History Records, Littler ASAP (Mar. 9, 2012).

2See Rod Fliegel, Barry Hartstein, and Jennifer Mora, EEOC Issues Updated Criminal Record Guidance that Highlights Important Strategic and Practical Considerations for Employers, Littler ASAP (Apr. 30, 2012).

3See Rod Fliegel, William Simmons, and Inna Shelley, Ohio Joins Handful of States that Offer Tort Liability Protections for Businesses that Hire and Employ Rehabilitated Ex-Offenders, Littler ASAP (Aug. 10, 2012).

4See Rod Fliegel, Jennifer Mora, and William Simmons, Indiana Passes New Legislation Restricting Criminal History Information Reported in Background Checks, Littler ASAP (Jun. 26, 2012).

5See Rod Fliegel, Philip Gordon, and Jennifer Mora, Colorado is the Latest and Ninth State to Enact Legislation Restricting the Use of Credit Reports for Employment Purposes, Littler ASAP (Apr. 26, 2013).

6See Rod Fliegel and Jennifer Mora, Employers Must Update FCRA Notices for Their Background Check Programs Before January 1, 2013, Littler ASAP (Sep. 4, 2012). 

Dale Deitchler and Susan Fitzke are Shareholders in the Minneapolis office; Rod Fliegel, Co-Chair of Littler Mendelson's Hiring and Background Checks Practice Group, is a Shareholder in the San Francisco office; and Jennifer Mora is an Associate in the Los Angeles office.  If you would like further information, please contact your Littler attorney at 1.888.Littler or info@littler.comMr. Deitchler at ddeitchler@littler.com, Mr. Fliegel at rfliegel@littler.com, Ms. Fitzke at sfitzke@littler.com, or Ms. Mora at jmora@littler.com.


Written by:


Littler 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.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

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.


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.