Compliance Guidelines for Minnesota’s Ban the Box Law

The Minnesota Department of Human Rights is charged with enforcing the new law. The department recently published its  Technical Guidance 364.021 in advance of the implementation of the monetary remedy provisions of § 364.021 which become effective January 2015. Although the guidelines published by the department are not technically ‘laws’ and its enforcement guidelines could be decided differently by a court, they offer insight into the department ’s interpretation of the law.

In this Update, we will look at the department’s recommendations to employers. They are:

• Review application forms to ensure that none of the questions could lead to the disclosure of criminal information from individuals applying for jobs in Minnesota. Multi-state employers may use one electronic application form if the form has language on it that is clear and unambiguous stating that applicants residing in Minnesota do not have to answer criminal background history questions. The text should in bold and in different font type.
• Employers should review their initial interview script to ensure that it does not contain any questions that could lead to the disclosure of criminal information. Employers are encouraged to wait until the end of the interview before asking the applicant to submit to a background check. Or, employers can inform the applicant in writing about being selected for an interview before informing the applicant that he or she is subject to a criminal background check.  If an employer does not conduct interviews before hiring an applicant, it should initiate a criminal background check after it decides to extend a conditional offer of employment to the applicant. The employer should first inform the applicant that he or she will be hired pending the results of a criminal background check. Written notification of the prior notice may be used by the employer to establish compliance with the law.
• Employers who conduct screening to comply with regulatory requirements must ensure applicants are not excluded from employment beyond the time period identified by a regulating licensing authority or other regulation. Employers who are required by law to conduct a criminal background check or gather information so that a check can be conducted by a licensing authority must be careful not to exceed the regulated time limits if denying employment.
• Employers are encouraged to review and adhere to the Equal Employment Opportunity Commission’s Guidance on the Use of Arrest and Convictions Records, published on April 25, 2012. It is the opinion of the department and the Commission that the use of criminal background information by an employer to eliminate candidates for employment may constitute a discriminatory practice if the policy has a disproportionate impact for a class of individuals. The Commission has held that neutral policies with an absolute bar to employment based on a conviction record are generally unlawful, even if applied to everyone uniformly.  Therefore, employers must show that the practice of conducting a criminal background check is job-related and consistent with business necessity.
• Employers should develop a narrowly tailored written policy for screening applicants and employees for criminal conduct. A recommended policy is one with a targeted screen that considers at least the nature of the crime, the time elapsed, and the nature of the job. It should also allow for an individualized assessment giving the individual an opportunity to offer additional information for the employer to consider. Other factors for the employer to consider include the number of offenses , references, and rehabilitation efforts. Employers should target their screening only to individuals who are chosen for an interview or for hire pending the criminal background check.

Compliance with state and federal equal employment laws and regulations is complicated. We recommend that employers work with their legal professionals to develop hiring policies that are compliant with the state and federal laws.

Our General Counsel, Chris Lemens , hosts a webinar entitled, “A Final Consensus on Criminal Background Checks and Equal Employment Opportunity” that offers in-depth instructional knowledge about compliance in this area. The next webinars are scheduled for March 11th and May 13th. Go here to register: http://www.backgroundbiz.com/campaigns/cceeo-webinar-invitation.html

Referenced documents:

• backgroundchecks.com’s Compliance Update (July 2013): http://www.backgroundbiz.com/compliance/complianceupdate_07262013.html
• Minnesota’s Department of Human Rights Technical Guidance: http://mn.gov/mdhr/employers/downloads/Technical_Guidance_364_021_v3.pdf