New Minnesota Law Limits Inquiries Into a Job Applicant’s Criminal History

Recent amendments to Minnesota law preclude employers from making early inquiries into a job applicant’s criminal history. Effective January 1, 2014, employers may only inquire into an applicant’s criminal history:

1. After the applicant has been selected for an interview; or

2. If there is no interview, after a conditional offer of employment is made to the applicant.

Accordingly, employers must remove any questions or “check-the-box” inquiries regarding an applicant’s criminal past on employment applications.

The new law, which previously applied only to public (governmental) employers, does not apply to employers who have a statutory duty to conduct a criminal history background check or to otherwise take into consideration a potential employee’s history during the hiring process. In addition, an employer is not prohibited from notifying applicants that law or the employer’s policy will disqualify an individual with a particular criminal history background from employment in particular positions.

In enacting these amendments, the Minnesota legislature seeks to further the state’s public policy of rehabilitating criminal offenders and assisting them in their return to the workforce, while still permitting employers to eventually conduct criminal background checks on job applicants. These amendments are intended to provide otherwise qualified applicants with criminal histories with the opportunity to explain themselves, rather than being summarily dismissed from consideration at an early stage in the application process.

Although the new law does not create a private cause of action for an aggrieved applicant, an employer that violates the law could be subject to fines by the Commissioner of the Minnesota Department of Human Rights—the agency tasked with enforcing the law as it applies to private employers. Specifically, an employer that is found to have violated the law will receive a written warning for the first offense that occurs before January 1, 2015. Subsequent violations could result in a fine up to $500.00 per violation, not to exceed $500.00 in a calendar month. For violations that occur after December 31, 2014, an employer with ten or fewer employees could be fined up to $100.00 per violation, not to exceed $100.00 in a calendar month, an employer with eleven to twenty employees could be fined up to $500.00 per violation, not to exceed $500.00 in a calendar month, and an employer with more than twenty employees could be fined up to $500.00 per violation, not to exceed $2,000.00 in a calendar month.

While the new law imposes limits on when an employer can conduct a background check on an applicant, employers are afforded certain protections under the law as evidence of an employee’s criminal history in civil litigation against an employer based on conduct of that employee or former employee is inadmissible if:

1. The duties of the employee’s position did not pose a particular risk to others;

2. Before the occurrence of the act giving rise to the civil action, a court order sealed any record of the criminal case or the employee or former employee received a pardon;

3. The record is of an arrest or charge that did not result in a criminal conviction; or

4. The action is based solely upon the employer’s compliance with the new amendments.

In light of the new amendments, Minnesota employers are advised to review and modify their hiring practices and job application forms to comply with the new law.