Minnesota becomes the newest of a number of states and municipalities enacting legislation limiting an employer’s ability to ask job applicants about criminal records. Under its new law, which will take effect January 1, 2014, employers are prohibited from asking about an applicant’s criminal history on an employment application. Instead, employers must wait until an applicant has been selected for an interview before inquiring into criminal history. While the statute delays when most employers can seek such information, it does not impact those employers who are statutorily required to consider criminal history in hiring for particular types of employment (e.g. occupations serving children, social workers, private detectives, health care workers, banks and other financial institutions, and those seeking certain licensures). Private employers who violate the statute may be subject to fines between $500 and $2000 per violation, depending on the size of the employer.
In an effort to encourage employers to consider applicants with criminal histories, Minnesota provides protection to employers who may face suit based on hiring decisions. The law limits the use of an employee’s criminal history as evidence in a civil action against an employer based on the conduct of an employee, such as a suit for negligent hiring. Evidence of an employee’s criminal history is inadmissible in such litigation if:
- The duties of the position of employment did not expose others to a greater degree of risk than that created by the employee interacting with the public outside of the duties of the position or that might be created by being employed in general;
- A court sealed the employee’s criminal record or the employee received a pardon prior to the act giving rise to the civil litigation;
- The criminal record is of an arrest or charge that did not result in conviction; or
- The action is based solely upon the employer’s compliance with the newly enacted statute regarding consideration of criminal records.
Minnesota joins Hawaii and Massachusetts, which also enacted broad-sweeping “ban the box” statutes covering both public and private employers. However, only Minnesota offers the statutory immunity for hiring described above. Like Minnesota, Massachusetts prohibits employers from inquiring into criminal history until the interview process. In Hawaii, an employer may only inquire into an applicant’s criminal history after making a conditional offer of employment to that applicant. In addition, municipalities in Newark and Philadelphia have enacted similar prohibitions covering both public and private employers. While many other cities and counties across the country have adopted laws limiting an employer’s ability to inquire into criminal history, these local hiring laws are generally far more limited in scope. Most apply only to city employers (e.g. Chicago, Baltimore, and Seattle), and in some cases to city vendors or contractors (e.g. Boston, New York, and Pittsburgh). Keep in mind the EEOC’s guidance on use of criminal background questions and for federal contractors, restrictions on use of criminal background by the Office of Federal Contract Compliance Programs.