Minnesota Enacts “Ban the Box Law" Prohibiting Employment Application Criminal History Checkmark Boxes and Restricting Criminal Record Inquiries Until After Interviews or Conditional Job Offers

Effective January 1, 2014, recent amendments to Minnesota law will restrict the timing of pre-employment inquiries by most private employers into a candidate’s criminal past. Employers who are not exempted from the law may not (1) inquire into or consider or require disclosure of criminal record information until the applicant has been selected for an interview or, if there is not an interview, until a conditional job offer of employment has been extended to the applicant, and (2) use any form of employment application that seeks such criminal record information. 

Minnesota §364.021, the law reads: “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. This section does not apply to the Department of Corrections or to employers who have a statutory duty to conduct a criminal history background check or otherwise take into consideration a potential employee's criminal history during the hiring process.

This statute does not prohibit an employer from notifying applicants that law or the employer's policy will disqualify an individual with a particular criminal history background from employment in particular positions.”

VIOLATIONS/PROCEDURE/REMEDIES

Public employers. Any complaints or grievances concerning violations of sections by public employers shall be processed and adjudicated. 

Private employers. 

(a) The commissioner of human rights shall investigate violations of section 364.021 by a private employer. If the commissioner finds that a violation has occurred, the commissioner may impose penalties as provided in paragraphs (b) and (c) below:

(b) For violations that occur before January 1, 2015, the penalties are as follows:
   (1) for the first violation, the commissioner shall issue a written warning to the employer that includes a notice regarding the penalties for subsequent violations;
   (2) if a first violation is not remedied within 30 days of the issuance of a warning under clause (1), the commissioner may impose up to a $500 fine; and
   (3) subsequent violations before January 1, 2015, are subject to a fine of up to $500
per violation, not to exceed $500 in a calendar month.

(c) For violations that occur after December 31, 2014, the penalties are as follows:

   (1) for employers that employ ten or fewer persons at a site in this state, the penalty is up to $100 for each violation, not to exceed $100 in a calendar month;
   (2) for employers that employ 11 to 20 persons at a site in this state, the penalty is up to $500 for each violation, not to exceed $500 in a calendar month; and
   (3) for employers that employ more than 20 persons at one or more sites in this state, the penalty is up to $500 for each violation, not to exceed $2,000 in a calendar month.

(d) 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.

364.09 EXCEPTIONS.

(a) This statute does not apply to the licensing process for peace officers; to law enforcement agencies to fire protection agencies; to eligibility for a private detective or protective agent license; to eligibility for school bus driver endorsements; to eligibility for special transportation service endorsements; to eligibility for certain commercial driver training instructor license, to emergency medical services personnel, or to the licensing by political subdivisions of taxicab drivers, if the applicant for the license has been discharged from sentence for a conviction within the ten years immediately preceding application of a certain violations.

This chapter also shall not apply to eligibility for juvenile corrections employment, where the offense involved child physical or sexual abuse or criminal sexual conduct.

(b) This chapter does not apply to a school district or to eligibility for a license issued or renewed by the Board of Teaching or the commissioner of education. 

(c) Nothing in this section precludes the Minnesota Police and Peace Officers Training Board or the state fire marshal from recommending policies set forth in this chapter to the attorney general for adoption in the attorney general's discretion to apply to
law enforcement or fire protection agencies.

(d) This chapter does not apply to a license to practice medicine that has been denied
or revoked by the Board of Medical Practice pursuant to section 147.091, subdivision 1a.
This chapter does not apply to any person who has been denied a license to
practice chiropractic or whose license to practice chiropractic has been revoked by the
board in accordance with section 148.10, subdivision 7.

(e) This chapter does not supersede a requirement under law to conduct a criminal history background investigation or consider criminal history records in hiring for particular types of employment.

Protections for Employers

The amended statute also affords protections to employers by limiting the admissibility of evidence of an employee’s criminal history in civil litigation against the employer in the circumstance where:

·         the civil action is based on the employee’s conduct (whether a current or former employee at the time of the civil action); and

·         the duties of the employee’s position did not pose particular risk to others; or

·         before the occurrence of the conduct at issue in the civil action, a court order sealed the criminal record or the employee received a pardon; or

·         the record is of an arrest or charge that did not result in a conviction; or

·         the action is based solely on the employer’s compliance with the new restrictions imposed by the statutory amendment.

According to Rod Fliegel, of Littler, Mendelson, These protections reflect an effort by the Legislature to balance the competing risks to employers, i.e., avoiding violations of the fair employment laws, on the one hand, and avoiding negligent hiring risks, on the other hand.