On May 13, 2013, Governor Dayton signed the “Ban the Box” bill into law. Effective January 1, 2014, private employers must “Ban the Box” inquiring about criminal history on a job application. Specifically, private employers now join their public employer counterparts and are no longer allowed to “inquire into or consider or require disclosure of” an applicant’s criminal record or criminal history until after the applicant has been selected for an interview. If there is not an interview, the prohibition applies before a conditional offer of employment is made to the applicant. S.F. No. 523 (to be codified at Minn. Stat. § 364.021).
Importantly, however, employers who have a statutory duty to conduct a criminal history background check or consider such criminal history during the hiring process (i.e. applications for working at a school or as a school bus driver) do not have to remove criminal history questions from the application. In addition, employers are not prohibited from notifying applicants that “law or the employer’s policy will disqualify an individual with a particular criminal history background from employment in particular positions.”
The Commissioner of Human Rights is tasked with investigating violations of the statute. If a violation occurs prior to January 1, 2015, an employer is given a written warning to remedy the violation. If the violation is not remedied, or subsequent violations occur, the Commissioner may impose up to a $500 fine per violation, not to exceed $500 in a calendar month. For violations after December 31, 2014, the penalties are as follows:
- Up to $100 per violation for employers with ten or fewer employees, not to exceed $100 in a calendar month;
- Up to $500 per violation for employers with 11-20 employees, not to exceed $500 in a calendar month; and
- Up to $500 per violation for employers with more than 20 employees, not to exceed $2,000 in a calendar month.
The remedies stated above are exclusive and an employer is not otherwise liable for complying with or failing to comply with the statute.
The fix is straight-forward:
- Employers should “Ban the Box” and remove any questions on the job application related to criminal convictions unless the employer has a statutory duty to consider such information.
- The statute does not prohibit employers from considering an applicant’s criminal history when deciding whether to offer an applicant a job; it only determines the timing of when such information may be considered.
- Employers should wait until the interview (or after the conditional offer is made if there is no interview) before inquiring into an applicant’s criminal convictions.
- Employers have the right to notify applicants that either the law or the employer’s policy will disqualify an individual with a particular criminal background.
- Employers who wish to include such notification could place it on the job application.
- At the interview stage, an employer interested in an applicant’s criminal conviction could ask the questions that used to be on the application (i.e. have you ever been convicted of a felony?).
- As intended by the statute, job applicants now get a chance to explain their side of the story.