by Richard R. Voelbel
Minnesota’s new “ban the box” law takes effect January 1, meaning private employers will be prohibited from inquiring about a job candidate’s criminal background until after the candidate has been selected for an interview or has received a conditional offer of employment.
Public employers already have been prohibited from including a box on job applications requiring applicants to reveal criminal history. After January 1, private employers will join public employers in no longer being allowed to “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, the prohibition applies until a conditional offer of employment is made.
The law does contain an exception, however. Employers that have a statutory duty to conduct a criminal history background check or consider criminal history during the hiring process (e.g., for jobs at schools or school bus driver jobs) don’t have to remove criminal history questions from their applications.
Also, employers aren’t prohibited from notifying applicants that the “law or the employer’s policy will disqualify an individual with a particular criminal history background from employment in particular positions.”
What to do
Here are some compliance tips for employers:
- Remove any questions about criminal history from job applications unless you have a statutory duty to consider such information.
- Be careful about the timing of inquiries. The law doesn’t prohibit considering an applicant’s criminal history when deciding whether to offer a job. It merely determines the timing of when the information may be considered.
- Wait until an applicant is selected for an interview before inquiring about a criminal conviction (or after a conditional job offer is made if there is no interview).
- You still have the right to notify applicants on job applications that either the law or company policy will disqualify individuals with a particular criminal background from employment in particular positions.
- At the interview stage, you may ask questions that used to be on the application. For example, “Have you ever been convicted of a felony?”
For more information on this topic, see the article “Minnesota employers must take action in response to ‘ban the box’ legislation” in the July 2013 issue of Minnesota Employment Law Letter.
Richard R. Voelbel is an attorney with Felhaber, Larson, Fenlon and Vogt, P.A., in Minneapolis. He can be reached at 612-373-8544 or rvoelbel@felhaber.com.