The “Box” Will be Banned in Minnesota
The Minnesota Legislature passed “ban the box” legislation, and Governor Mark Dayton signed it into law. The law will take effect on January 1, 2014.
In essence, the law will ban private employers from inquiring into a job applicant’s “criminal record or criminal history” before an interview or, if there’s no interview, before a conditional offer of employment:
A public or private employer may not inquire into or consider or require disclosure of the criminal record or criminal history of an applicant for employment until the applicant has been selected for an interview by the employer or, if there is not an interview, before a conditional offer of employment is made to the applicant.
S.F. 523 (to be codified at Minn. Stat. §364.021). Violation does not give rise to a private cause of action, but rather the potential of fines for unremedied violations to be imposed by the Minnesota Department of Human Rights during a one year “introductory” phase. After the first year, higher fines may be imposed for violations, depending on employer size.
The legislation specifically prohibits causes of action by applicants, which was apparently an important part of the political compromises in the new law:
The remedies under this subdivision are exclusive. A private employer is not otherwise liable for complying with or failing to comply with section 364.021.
This legislation places Minnesota at the vanguard in this “ban the box” movement (only 3 other states have the ban). But the prohibition against private causes of action should help reduce employer concerns about its misuse by otherwise unsuccessful applicants.
Takeaways: Employers need to revise their application to take off the “box” (whether literally a “box” or in another form) or any questions about “criminal records or history” and move the inquiry to the interview or conditional offer stages of the hiring process. Since Minnesota is at the forefront, “off the shelf” application forms generated by national-offices for local Minnesota offices need particular attention. And remember, this is really a “fair crack at it” legislation, meaning that criminal history may still be relevant to a hiring decision, but only when the applicant has been able to demonstrate his or her qualifications despite the criminal history. In weighing the impact of such background information, it will be important to consult with legal counsel on the ultimate question of relevancy and the potential of discrimination. While this new legislation doesn’t allow for a private lawsuit, the EEOC is still very interested in the potential misuse of criminal background questions when investigating possible protected class discrimination.