In the current job market, many employers relate that it’s common to receive dozens or hundreds of eager applicants for a single open position. Often, there simply isn’t enough time to interview every applicant, meaning some initial screening must be completed based on what is disclosed in the applications. Many employers choose to ask prospective employees whether they have ever been convicted of a crime. In some cases, a clean record might be an essential qualification for the job; in others, an employer may just think they would be more comfortable hiring someone without a criminal record. Quite frequently, an applicant who discloses his or her criminal record on an application will find themselves eliminated from consideration without an opportunity to explain the timing and circumstances of his or her prior conviction.
Starting January 1, 2014, most employers will be prohibited from requiring applicants to disclose their criminal history on an initial employment application. This so-called “ban the box” legislation has applied to public employers in Minnesota since 2009, and was recently expanded to private employers by legislation signed by Governor Dayton on May 15, 2013.
Under the 2013 amendments to Minn. Stat. 364.021, employers are prohibited from asking about or considering an applicant’s criminal history until after the applicant has been selected for an interview or conditionally offered a job. Thus, not only does the law prohibit requiring applicants to self-report prior crimes, but it also prohibits most use of background checks to learn about criminal history before an interview or job offer.
There are some exceptions to the law. Employers that are required by law to conduct a background check or consider a potential employee’s criminal history during hiring are exempt from the prohibitions. In addition, the law does not prevent employers from notifying all applicants that they will be required to pass a criminal background check at the appropriate time to obtain employment if a clean record is required.
During the first year of the new law, employers will be given a written warning for a first violation, but the Minnesota Commissioner of Human rights will have the authority to enforce the provision and impose fines of up to $500 for subsequent violations. However, the law does not provide a private right of action, meaning private employers cannot be sued by individual job applicants for violation of the statute.
Finding talented and qualified employees is one of the most important keys to running a successful business. The desire to request as much information as possible from applicants is understandable given the need to find someone who is a right fit for the job and the company. But for the unwary employer, application forms which make prohibited inquiries can create unwanted liabilities and potential legal headaches. Employers would be wise to consider having an attorney review their application forms before putting them into widespread use, and discuss when and whether it is appropriate to consider criminal history in making an employment decision.