"Ban the [Criminal History] Box"

"Ban the Box" in Minnesota on January 1, 2014 - Other Jurisdictions May Follow Suit

Starting on January 1, 2014, Minnesota employers will no longer be able to request information about a job applicant’s criminal history until the applicant has been selected for an interview or before an offer of conditional employment is made to the applicant. The new law does provide an exception for employers that are required to conduct criminal history background checks of applicants. Before the January 1st deadline, employers should evaluate hiring processes to ensure compliance with the new law. In addition, employers should be aware that other states, cities and local governments have enacted or are starting to consider similar restrictions on obtaining criminal history information on applicants. This means that employers with operations in multiple locations should be aware of the developing changes in this area and should ensure that hiring practices organization-wide conform to any new local requirements regarding requesting applicant criminal history.

Minnesota is one of ten states (including Colorado, New Mexico, California, Illinois, Rhode Island, Maryland, Connecticut, Massachusetts, and Hawaii) that currently seek to limit an employer’s ability to request information about an applicant’s criminal history. Minnesota is one of only four states (along with Hawaii, Massachusetts, and Rhode Island) that limit the ability of private employers to conduct criminal background checks on job applicants.

Many city, county and local governments nationwide have limited the ability of employers to obtain criminal background checks on applicants. Many of these requirements apply to public employers, but a number of city, county and local governments restrict government vendors, contractors, and in some cases, private employers from requesting criminal history information from applicants. For example, the city of Newark has enacted one of the most comprehensive city ordinances limiting the ability of private employers to conduct criminal background checks on applicants. Several other local governments have put restrictions in place covering private employers, such as in California, Connecticut, Massachusetts, New York, Pennsylvania, and Washington.

Some of the recent “ban the box” legislation over the past few years has been attributed to advocacy groups that have increased their efforts to promote new legislation in this area. Advocacy groups cite statistics showing that an increased number of individuals seeking jobs today have a criminal record, and that criminal history checks disproportionately affect minority applicants. The Equal Employment Opportunity Commission (“EEOC”) has often weighed in on the criminal background issue, and in 2012 the EEOC issued guidelines that apply to all employers. The guidelines state that employers should consider the nature and timing of the criminal history in relationship to the job sought in order to ensure that the criminal background check is job-related. The EEOC guidelines also warn employers not to consider applicants’ arrest records.

As a result of the efforts of these advocacy groups, and in part as a result of the EEOC guidelines, many state and local governments that have not already passed “ban the box” legislation are now considering whether to restrict criminal background checks on applicants. States such as North Carolina and New Jersey have recently considered “ban the box” legislation for public and private employers. Similarly, given the attention this issue has attracted in recent months and years it is likely that many city, county, and local governments nationwide will also be considering or reconsidering the criminal background check issue.

It will be important for multi-state employers to have a clear understanding of what restrictions will apply to their application and hiring processes in each location. This means reviewing application processes in light of the law in each locality, and staying alert to legislative changes in jurisdictions where the employer does business.

If you have questions regarding any of these developments, please feel free to contact Jessica Hofrichter at jhofrichter@seatonlaw.com or at 952-921-4624.

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