One of the more common issues faced by employers and hiring managers when seeking new employees involves job applicants’ criminal backgrounds and histories. One of the reasons this remains a prevalent issue is due to the commonality of Americans with criminal records, which the Bureau of Justice Statistics estimates includes 80 million Americans, or roughly 25% of the total population.
MINNESOTA “BANS THE BOX”: QUESTIONS ABOUT CRIMINAL HISTORY ON JOB APPLICATIONS
The rule for employers in Minnesota has been relatively straightforward since 2014. Under Minnesota’s so-called “ban the box” law, public and private employers, regardless of size, are not allowed to ask about, consider, or require job applicants to disclose their criminal histories until they are selected for an interview. Employers should wait to initiate a criminal background check until after they have decided to interview a job applicant. For their protection, employers may even want to wait until the end of the interview before asking a job applicant to submit to a criminal background check, or at least notify the applicant in writing that he or she has been selected for an interview before informing the applicant that he or she is subject to a criminal background check.
If the employer does not hold job interviews, the employer may not ask about, consider, or require disclosure of criminal history until a conditional office of employment has been made to the job applicant. In this case, the employer would show proof of compliance with the law by first informing the applicant that he or she will be hired, dependent on the results of a criminal background check prior to requesting that the applicant submit to a criminal background check.
In either case, the employer is still allowed to notify applicants that particular criminal history backgrounds will disqualify the applicant from particular positions. For example, if the employer’s policy states that an applicant will be prohibited from working in a particular position, the applicant should be informed of the types of offenses that are subject to the employer’s policy and what steps, if any, the applicant can undertake to obtain an exception from the employer.
An exception is also carved out for employers who have a statutory duty to conduct a criminal history background check of that are directed to gather information such that a criminal history background check may be run by a licensing authority; however, the Minnesota Department of Human Rights has reiterated that this exception is particularly narrow, and will not apply to the majority of employers.
Employers should take the following steps to ensure compliance with Minnesota’s ban-the-box law:
- Review their job application forms to ensure that none of the questions could lead to the disclosure of criminal information. If no job application form is used, review their initial applicant interview script to ensure that it contains no questions that could lead to the disclosure of criminal information.
- If the employer is in several states and has an electronic job application, ensure that the application states—in bold and distinct font—that applicants applying for Minnesota positions should not answer questions inquiring into criminal history under Minnesota law.
- If an employer inadvertently learns of a job applicant’s criminal history, the employer should not track or in any way use this information until it is authorized by law to do so.
FEDERAL ANTI-DISCRIMINATION LAWS: USING CRIMINAL RECORDS IN EMPLOYMENT DECISIONS
Importantly, the Minnesota “ban the box” law does not require an employer to hire an applicant with a criminal record. However, an employer may still be liable for discrimination under state or federal law—such as Title VII—if the employer’s policy has a disproportionate impact for a class of individuals or the employer fails to provide the applicant with an opportunity to respond to the criminal background information obtained on the applicant.
Discrimination may also be found where the employer fails to use a targeted screen, which should include a consideration of “the nature and gravity of the offense or conduct, the time that has passed since the offense or conduct and/or completion of the sentence, and the nature of the job held or sought.”
Employers should follow these best practices to ensure compliance with Federal Anti-Discrimination laws:
- Eliminate policies or practices that exclude people from employment based on any criminal record.
- Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.
- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct. These policies should do the following:
a. identify essential job requirements and the actual circumstances under which the jobs are performed,
b. determine the specific offenses that may demonstrate unfitness for performing such jobs,
c. determine the duration of exclusions for criminal conduct based on all available evidence,
d. document the justification for the policy and procedures, and
e. keep a record of consultations and research considered in crafting the policy and procedures.
- When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
- Keep information about criminal records confidential and only use them for their intended purposes.
For more detailed questions or assistance in compliance with federal and state law during hiring and firing decisions, consider contacting an experienced employment law attorney at Gislason & Hunter LLP.