Proposed Law Would Ban Private Employers From Seeking Disclosure Of Criminal Backgrounds On Employment Applications

By Stewart C. Loper
April 2013

Background

One of my regular business clients called me recently after she heard a news report saying that the Minnesota Legislature had made it illegal to include questions about an applicant's criminal history on a job application form. She wondered whether this was really true.

"Not exactly," I told her. What she heard, I think, was a news report that the bills have been introduced in both houses of the legislature, which would bar private employers from asking about a person's criminal record on a job application form. [1] Many standard employment application forms have a box to check to indicate that the applicant has a criminal history. Hence the pending legislation is sometimes referred to as the "ban the box" bill.

The Present Law

At present, neither bill has been passed by its respective house. The Senate bill authored by Senators Champion, Tomassoni, Chamberlain, Eaton and Latz, has been introduced and referred to the Judiciary Committee. The House bill authored by Representatives Mahoney, S. Johnson, Cornish, Lesch, Metsa and others, has been referred to the Committee on Labor, Workplace and Regulated industries.

The federal Equal Employment Opportunity Commission has long taken the position that job applications that have a box for the applicant to check, or that ask for a criminal history, unfairly discriminate against applicants on the basis of race, because racial minorities are more likely to have had prior run-ins with the law, and those applicants are often summarily eliminated from consideration, even if their offenses have nothing to do with their ability to perform the tasks required by the job being offered

Since at least 2009, Minnesota law has provided that a "public employer" may not inquire about or consider the criminal record or criminal history of a job applicant until the applicant has been selected for an interview by the prospective employer. Minn. Stat. §363.021 (a). [2] Under the current law, an applicant for a public job, or a license to conduct a licensed occupation in Minnesota, may not be eliminated from consideration for employment or license unless the crime or crimes for which the applicant has been convicted "directly relate to the position of employment sought or the occupation for which the license is sought." Minn. Stat. §364.03, Subd. 1.

The Purpose Of The New Law

The idea of the pending legislation is to apply the same standards to private employers to discourage them from automatically disqualifying applicants and discarding the employment applications of those who "check the box," regardless of the substance of their criminal records.

It is important to note that the proposed law would not prevent an employer from inquiring into, or obtaining a criminal history from those applicants that an employer selects for interviews or those to whom it makes a job offer contingent on a satisfactory criminal history report. It would continue to be appropriate to obtain criminal histories and background checks on the people the employer decides to interview for a position, or those to whom it extends a job offer that is contingent on a satisfactory criminal background check.

The Effect Of The Pending Legislation

The practical effect of the proposed law would seem to make the job application process more complicated and more time-consuming for employers in the private sector. Under the new law, a prospective employer would be required to first obtain personal information, educational and employment history from applicants using an application form that does not require disclosure of the applicant's criminal record. From those applications, the prospective employer would presumably identify potentially qualified applicants. Only then could an employer use another form to obtain a criminal history and consent to a background check from qualified applicants.

It is important to remember that the statute will require that only crimes that "directly relate" to the employment sought may be used to disqualify potential applicants. [3]


Notes

[1] See Minnesota House of Representatives File No. 498, and Minnesota Senate File No. 361.

[2] The existing statute does not apply to the Minnesota Department of Corrections, or to employers who have a statutory duty to conduct criminal background checks. Minn. Stat. sec. 364.021 (b).

[3] See Minn. Stat. Sec. 364.03 Subd. 1.