Now that Minnesota has “banned-the-box,” employers would benefit from reviewing the “Technical Guidance” that the Minnesota Department of Human Rights (MDHR) recently published on its website.
With estimates that 25% of all Americans have criminal arrest or conviction records, the MDHR is confident that the new law “offers the vast majority of these individuals a second chance at an opportunity for employment.” Undoubtedly, this also promises a big impact on hiring practices for Minnesota employers.
By now, employers should know that Minn. Stat. § 364.021 prohibits employers from asking job applicants to provide criminal history information on the initial job application. But the MDHR’s Guidance clarifies that it is still permissible to ask for criminal background information if the request comes at the right time. For most public and private employers, the “right time” is after an applicant has been selected for an interview or offered conditional employment.
Below, briefly, are key takeaways from the MDHR’s Technical Guidance:
- Takeaway #1: Multistate Applications
Employers using a multi-state application must use a bold disclaimer advising Minnesota applicants not to answer any questions relating to criminal history.
- Takeaway #2: Timing of Inquiry
The law itself and the Guidance provide different rules on the timing of background checks. The law says that employers must wait only until an applicant is selected for an interview before asking about criminal background history. However, the MDHR’s Guidance recommends that employers actually wait until after conducting the interview to ask for that information. If the employer does not conduct interviews, the statute and the Guidance agree that the employer must wait until after making a conditional job offer to ask about criminal background history.
- Takeaway #3: Background Checks Required by Law
The Guidance also addresses the timing of criminal background checks when the employer is required by another statute to conduct criminal background checks. Again, timing matters since the Guidance, tells employers to look to the language of the statute creating the obligation to ask for criminal history information. In many cases, that statute will not require an employer to inquire into criminal history background until after the initial application.
The MDHR’s position on the Ban the Box statute is pretty shaky. As we previously reported, even the Minnesota Department of Human Services (DHS) previously concluded that the statute exempted health care employers and other similar fields. While the DHS subsequently changed its position after the MDHR issued its opinion, it remains to be seen whether the MDHR’s broad interpretation of the ban-the-box law can survive any potential legal challenges. In the meantime, Minnesota employers with legal obligations to do background checks must choose between applying the statutory language of Ban the Box or the MDHR’s more restrictive interpretation of Ban the Box.
Bottom Line
The MDHR’s Technical Guidance relates to the timing of criminal background inquiries, but it does not provide additional clarity on how to use an applicant’s criminal history in deciding whether or not to hire the candidate. Employers must be aware that an overly broad exclusionary policy based on criminal history could be considered discriminatory. For additional information, check out the EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions (April 25, 2012).
Employers with questions about Minnesota’s ban-the-box law or the MDHS’s Guidance should feel free to contact the any of the Labor & Employment attorneys at Felhaber Larson.
Meggen E. Lindsay also contributed to this post.