PRIVATE EMPLOYER “BAN THE BOX” LEGISLATION Commissioner Kevin Lindsey Minnesota Department of Human Rights September, 2014

This presentation will provide an overview of Minnesota’s ban-the-box law for private employers, answers to frequently asked questions and information on the enforcement efforts of the Minnesota Department of Human Rights. Minnesota Department of Human Rights 2 Introduction

A private employer may not inquire into or consider or require disclosure of the criminal record or criminal history of an applicant for employment until the applicant has been selected for an interview by the employer or, if there is not an interview, before a conditional offer of employment is made to the applicant. See, Minn. Stat Minnesota Department of Human Rights 3 Minnesota “Ban the Box” Legislation

The new law doesn’t preempt or supplant prior criminal background check laws. An employer can still be held liable for violating anti-discrimination laws in how it uses criminal background check information despite complying with the new law. Minnesota Department of Human Rights 4 Minnesota “Ban the Box” Legislation

The following questions represent some of the most common questions concerning the new law that have been submitted to the MDHR. Minnesota Department of Human Rights 5 Frequently Asked Questions

Yes, there is no minimum threshold of employees as all Minnesota private employers are subject to the law. Minnesota Department of Human Rights 6 Does the law apply to small businesses?

Yes, the ban-the-box law provides that private employers are exempt under the new law if (a) the employer has a statutory duty to conduct a criminal background check or (b) statutory duty to take into consideration a potential employee’s criminal history during the hiring process Minnesota Department of Human Rights 7 Are there private employers that are exempt from the new law?

No, the ban-the-box law imposes no requirements on an employer to hire an individual with a criminal record. The law doesn’t require in the hiring process that an employer give any special preference to an individual with a criminal record. Minnesota Department of Human Rights 8 Are employers required to hire someone with a criminal background?

No, the law does not compel an employer to interview an individual who has a criminal record. Minnesota Department of Human Rights 9 Are employers required to interview someone with a criminal record?

Yes, companies can still use criminal background checks. The new law does not eliminate the ability of a company to use criminal background checks in evaluating which applicant to select. The new law only impacts the timing of when criminal background check information can be obtained. Minnesota Department of Human Rights 10 Can my company still use criminal background checks?

No, the action of asking for criminal background history information constitutes a violation of the law. Use of the information about criminal background history by an employer is not required for a violation. Companies should be careful of asking questions that might lead to the applicant providing criminal background history information. Minnesota Department of Human Rights 11 Can an employer ask for criminal history on the application if the information isn’t immediately used?

No. Asking about past driving violations is a violation of the new law as it would require the applicant to disclose possible prior criminal violations. An employer however could ask a job candidate, “Do you have an unrestricted valid CDL (Commercial Driver License) license?” Minnesota Department of Human Rights 12 Can a company ask about “past driving violations” on an application?

Yes, an employer may inform applicants that they will be subject to a criminal background check and that certain past convictions may bar them from being selected by the employer. Minnesota Department of Human Rights 13 Can applicants be informed that a criminal background check will be conducted?

Yes, private employers can be fined for failing to comply with the law. In 2014, the MDHR, after issuing a written warning, may impose up to a $500 fine. In 2015, MDHR will not issue a written warning before imposing a fine; fines will be assessed against an employer based on a graduated scale given the size of the employer. Minnesota Department of Human Rights 14 Can my company be fined for failure to comply with the law?

Yes, employers can provide information on their application form that individuals who have a particular criminal history background will be disqualified from employment by the employer. Minnesota Department of Human Rights 15 Can applicants be informed that they may be disqualified for having previously committed a crime?

No, a violation of the new ban-the-box law will not create an independent cause of action. See, Minn. Stat Minnesota Department of Human Rights 16 Can failure to comply create an independent cause of action?

The answer depends on whether the employer is going to interview candidates before determining who to hire for the open position. If the employer does conduct interviews before an applicant is hired, the employer should initiate a criminal background check after it has decided to interview the candidate. If the employer doesn’t conduct interviews before hiring, the employer may initiate a criminal background check after it extends a conditional offer of employment. Minnesota Department of Human Rights 17 When can an employer obtain criminal history information from an applicant?

Yes, the new ban-the-box law applies to the Minnesota operations of companies that operate in multiple states Minnesota Department of Human Rights 18 Are businesses based in another state required to comply with ‘Ban the Box’ law in Minnesota?

Yes. A multi-state employer doesn’t need to abandon its practice of using one electronic application, provided that the electronic application provides language on the application that is clear and unambiguous that Minnesota law provides that applicants don’t have to answer criminal background history questions. Minnesota Department of Human Rights 19 Can a multi-state employer have one application form?

Yes. 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 employer does not use a targeted screen and the employer fails to provide the applicant with an opportunity to respond to the criminal background information obtained on the applicant. Minnesota Department of Human Rights 20 Can an employer be liable for discrimination if the employer complies with the ‘Ban the Box’ law?

The discussion of how a criminal background check policy may violate anti-discrimination laws is beyond the scope of this presentation. However, a good discussion on this issue can be found within the EEOC Technical Assistance Guidance on the Use of Arrest and Convictions Records, published on April 25, 2012.EEOC Technical Assistance Guidance on the Use of Arrest and Convictions Records Minnesota Department of Human Rights 21 Criminal Background Checks Policies & Anti-Discrimination Laws

The Minnesota Department of Human Rights (MDHR) is charged with enforcing this law. There is no private cause of action. MDHR is seeking to engage in a comprehensive education program to bring about compliance with employers. Minnesota Department of Human Rights 22 How is the ‘Ban the Box’ law enforced?

During 2014, the first year that the law is in force, the commissioner will provide a written warning to any employers found in violation, before any fines are levied. If a first violation is not remedied within 30 days of the issuance of a warning, the commissioner may impose up to a $500 fine, not to exceed $500 in a calendar month. Minnesota Department of Human Rights 23 What are the penalties for violating the ‘Ban the Box’ law?

As of the date of this presentation, the Department has sent out 27 warning letters to employers and is contemplating sending out an additional 16 warning letters. The Department has also issued three fines to employers who failed to respond in a timely manner. Minnesota Department of Human Rights 24 Issuance of warning letters

For more information, visit Minnesota Department of Human Rights 25 Minnesota’s ‘Ban the Box’ Legislation