Beginning January 1, 2014, Minnesota law will prohibit all employers from inquiring into an applicant’s criminal history in the initial application process. S.F. No. 523, 88th Leg. (Minn. 2013) (to be codified at Minn. Stat. § 364.01 et seq.). With the enactment of the law, Minnesota joins a small, but growing number of jurisdictions that limit private employer’s criminal history inquiries during the application process.

Under the Minnesota law, all private employers are prohibited from inquiring into, considering, or requiring the disclosure of an applicant’s criminal record or history until after (i) the applicant has been selected for an interview, or (ii) where there is no interview, a conditional offer of employment is made to the applicant. The law provides a limited exception for employers with a statutory duty to conduct background checks or inquire into an applicant’s criminal history. All employers are allowed, however, to notify applicants that employer policy or the law will disqualify applicants with certain backgrounds from particular positions.

With the passage of this legislation, Minnesota joins Hawaii and Massachusetts as the only states currently limiting the timing of private employers’ inquiries into an applicant’s criminal history during the application process. A number of municipalities also have either adopted (e.g., Newark, NJ and Philadelphia, PA), or recently passed (Buffalo, NY and Seattle, WA), local ordinances restricting the timing of criminal history inquiries by private employers in the application process. These laws, although similar in nature, vary as to who constitutes a covered employer, when such employer may inquire into an applicant’s criminal history, and what information may be inquired into.

Employers in these jurisdictions are advised to thoroughly review their employment applications to ensure compliance with these laws. Employers should be aware that these “ban the box” laws primarily limit when during the pre-hiring process an employer may inquire about criminal history. Many jurisdictions have also adopted laws addressing permissible uses of criminal history information in employment-related decisions.