A new law signed by Governor Mark Dayton will significantly change how Minnesota employers gather and use information about job applicants’ criminal history.  The new “ban the box” law, referring to the criminal history check-off box found on many employment applications, will prohibit private employers from asking about or considering an applicant’s criminal record or criminal history until after selecting the applicant for an interview or, if there is no interview, making a conditional offer of employment.  The new law, which goes into effect January 1, 2014, will not apply to employers who have a statutory duty to conduct a criminal history background investigation or otherwise consider an applicant’s criminal history during the hiring process.

Public employers in Minnesota are already prohibited from inquiring about an applicant’s criminal history in an initial application.  When the new law takes effect, Minnesota will be one of only a handful of U.S. states or localities with a “ban the box” law applicable to private employers.  Minnesota employers who have previously required applicants to disclose their criminal history in an application will have to defer this inquiry until the interview stage of the hiring process.  As a result, employers in Minnesota will need to review and modify both their applications and hiring practices.            .            

Minnesota’s Department of Human Rights will be responsible for investigating violations of the state’s ban the box law.  Violations occurring before January 1, 2015 will result in a written warning for the first violation and penalties of up to $500 for first violations that are not remedied within 30 days, as well as subsequent violations.  Penalties for violations occurring before January 1, 2015 may not exceed $500 in a calendar month.  Violations occurring after January 1, 2015 will result in penalties ranging from $100 to $500 for each violation, depending on the size of the employer, with caps ranging from $100 to $2,000 per month.       

Ban the box legislation at the state and local level continues to be a growing trend based on the theory that use of criminal background checks has a disproportionate effect on racial and ethnic minorities.  Earlier this year, the New Jersey Senate also introduced proposed legislation that would restrict employers’ ability to inquire about an applicant’s criminal background until after making an offer of employment.