Minnesota’s Ban the Box Law: How Does it Effect the Employee Application Process?
In 2014, Governor Dayton signed into law Minnesota Statutes § 364.01-364.10, collectively called the Ban the Box Legislation. The Ban the Box legislation expands to private employers the prohibition of requiring a potential employee to admit on a job application whether or not they have been convicted of a serious crime. This ban has been in effect for public employers in Minnesota since 2009.
The Ban the Box legislation does not require an employer to hire any candidate with a criminal background, what it does is instead provides the employer with that information later in the hiring process; such as after a conditional job offer has been extended or after an interview. The new law does not compel employers to interview individuals who have a criminal record nor does it prevent employers from conducting a criminal background check, especially if certain jobs are required to have criminal background checks under either state or federal law. The law also applies to both small and large companies, as there is no minimum threshold. All Minnesota’s employers, large and small are covered under the new law. The Ban the Box law also does not eliminate laws that require individuals with criminal backgrounds to be excluded from certain positions. If an employer is prohibited under federal or state law from hiring someone who has previously been convicted of a crime, the employer is still obligated to continue to follow that federal or state law.
A question that employers might have is: at what point during the interview process can an employer obtain criminal history information from a potential employee? The short answer is that it depends. It depends on whether the employer is going to interview the candidate before determining who to hire or if the employer is not going to do interviews before determining who to hire. If an employer is going to interview candidates then it can initiate a criminal background check after he or she has decided to interview the candidate. If an employer does not conduct interviews before hiring an applicant the employer then can initiate a criminal background check after it extends a conditional offer of employment.
The Ban the Box law applies to any business, even if a business is employed in another state but has a Minnesota location. Also, if the employer is multi-state employer and has one electronic application system, then that employer can continue to use the one electronic application system as long as there is language on the application that is clear and unambiguous that Minnesota law provides that applicants do not have to answer criminal background history questions.
If an employer elects not to follow the new Ban the Box rule, the employer can be liable for discrimination under state or federal law. If it is found that an employer could possibly be violating the Ban the Box rule, any violations would be enforced by the Minnesota Department of Human Rights and there is no private cause of action. Any violations found during the first year of enactment, an employer will be given just a written warning before any fines. If the violation is not remedied within thirty days of the written warning the Commissioner of the Minnesota Department of Human Rights may impose up to a $500.00 fine. For any violations that occur in 2015, the penalties are as follows;
- For employers that employ 10 or fewer persons at a site the penalty is up to $100.00 for each violation,
- For employers that employ 11-20 persons at a site the penalty is up to $500.00 for each violation, and
- For employers that employ more than 20 persons at one or more sites the penalty is up to $500.00 for each violation, not to exceed $2,000 in a calendar month.
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