The Minnesota Department of Human Services (“DHS”) has reversed its earlier interpretation of the new “Ban the Box” legislation and has now declared that, effective January 1, 2014, all employers who are required to conduct criminal background checks in the health care and related fields under Minnesota Statutes 245C are prohibited from requesting an applicant’s criminal history on the initial employment application. Instead, that inquiry must wait until later in the pre-employment process.
This is obviously a very important development for employers subject to Chapter 245C background check requirements. However, the reasoning underlying the DHS position shift most likely applies to every other Minnesota employer with a legal duty to conduct criminal background checks as well.
Minnesota’s Ban-the-Box Legislation
As we previously reported, effective January 1, 2014, Minnesota employers must not “inquire into or consider or require disclosure of an applicant’s criminal record or criminal history” until after the applicant has been selected for an interview. If there is no interview planned, the ban applies until a conditional offer of employment is made to the applicant.
The language of the new “Ban the Box” law contains what seems to be a clear exemption for “employers who have a statutory duty to conduct a criminal history background check.” This was presumed by most authorities to include health care and long-term care providers since they are obligated to conduct background checks of all direct care employees under Minn. Stat. Chapter 245C. In fact, in July 2013, the DHS specifically advised employers that “the new Ban the Box law does not affect employers that participate in the . . . background study process under chapter 245C.”
The Minnesota Department of Human Rights (“MDHR”) apparently disagreed with DHS and met privately with them to hash out what the statute required of employers that are obligated by law to conduct background checks.
MDHR and DHS Agree that Ban-the-Box Applies to Health Care and Related Employers
Thereafter, DHS did a complete about-face and issued a letter dated December 5, 2013, adopting MDHR’s position that the new law prohibits all employers from asking at the time of application about the applicant’s criminal history. Specifically, the DHS stated that, effective January 1, 2014:
[A]ll the same employers will still be required to initiate background studies under Minnesota Statutes, chapter 245C, however, employers will not be allowed to have a “box” on the application that asks if an applicant has a criminal history or has committed a specific crime or specific level of crime. Similarly, under the new law, employers will not be able to use a background study conducted by DHS (or other criminal history reviews conducted by another entity) as the first stage of screening applicants for a position.
The letter then described a hypothetical health care employer who receives 20 applications for a position. The DHS stated that, after January 1, 2014, it would be illegal for that employer to have a box on the application asking about criminal history or to initiate background studies on all 20 of those applicants. Instead, that employer would have to use non-criminal history factors to reduce the initial pool of applicants and could then request a DHS background for the candidates who made the first cut. According to DHS, this “secondary” screening is lawful under the new law because “[t]he practice of using background studies or other criminal history screens/reviews as a secondary or tertiary filter is consistent within the law.” Importantly, the DHS also reiterated that under the new law “employers may include a statement on applications informing applicants of the possible future implications that certain crimes could have on eligibility for employment . . . .”
Impact on Other Employers
While the DHS letter applies only to those employers required to conduct background searches under Chapter 245C, its rationale would seem to apply to all Minnesota employers with legal obligations to conduct background checks for certain jobs (e.g. teachers, apartment managers, etc.). Indeed, the DHS came to its conclusion only after conferring with the MDHR, which is the agency charged with the responsibility of enforcing the law. The MDHR asserts that all Minnesota employers are subject to the law. In the FAQ section of their web site, the MDHR explains:
If you are obligated to screen employees’ criminal records due to working with vulnerable populations or some other legal requirement you are still allowed to obtain necessary criminal background information. The change in statute does not preclude an employer from asking about an applicant’s criminal history, it merely changes the timing of when that request can be made, including for occupations with legal requirements about criminal records.
Bottom Line
The position adopted by the DHS and the MDHR is, at the very least, perplexing since it seems to ignore the clear exemption language of the Ban the Box statute. This leaves Minnesota employers that have legal obligations to do background checks in the position of having to choose between the following two options:
- Ignore the DHS letter and the MDHR position in favor of complying with the plain language of the statute. Administrative regulations and pronouncements are not laws but rather, statements of how a particular law is interpreted by the administrative agency responsible for enforcing that law. It is still up to the court system to determine the actual meaning and application of any laws, including the Ban the Box statute. Of course, litigation can be time consuming and expensive, and many employers do not wish to be the “test case.” Still, if an employer considers it important enough to ask for the criminal background information on the application, they could risk incurring administrative sanctions (depending on the size of the employer, up to $5
00 per violation, not to exceed $2,000 in a calendar month) and then contest those sanctions before a judge in the hope that the judge favors the statutory language over the MDHR interpretation; or
- Comply with the MDHR directive for now and await further clarification from the courts as to whether the statute really means what it seems to say. This is certainly the more prudent approach given the fact that the Ban the Box law does not prohibit employers from seeking criminal background information; it merely prevents this information from being obtained in the first step of the application process. This should not be a significant hardship and actually may benefit those employers that have some employees subject to a background check requirement and others who are not. Now, those employers need not maintain separate employment applications – they can use a unified document applicable to all jobs, which will be more administratively convenient and will avoid the possibility of administrative sanctions for inadvertently using the wrong form.
We hear that there are industry groups already discussing the possibility of legal challenges, so we may not have long to wait to see if the administrative interpretations hold up. We will continue to monitor this issue closely.
If you have any questions, feel free to contact any of the attorneys in Felhaber Larson’s Labor & Employment Group.