Minnesota recently joined a small but growing number of states by signing a law into effect that prohibits all employers from inquiring into an applicant’s criminal history in the initial application process. This law-which took effect January 1, 2014-prohibits private employers from inquiring into, considering, or requiring the disclosure of an applicant’s criminal record or history until either:
A: the applicant has been selected for an interview
OR (if there is not an interview)
B: a conditional offer of employment is made to the applicant
Employers are also prohibited from utilizing any form of employment application that seeks such criminal record information.
An exception is provided for employers with a statutory duty to conduct background checks or inquire into an applicant’s criminal history.
Representative Tim Mahoney, who sponsored the legislation, states the law ‘does not prohibit private employers from eventually conducting background checks and fully investigating the criminal past of potential employees, but is designed to get applicants past the initial application stage, so that if they qualify for the job, they get a chance to explain themselves.’
Further, the statute expressly states that it does not prohibit an employer from notifying applicants that either law or the employer’s policy will disqualify an individual with a particular criminal history background from employment for particular positions.
Employers take note!
Stay up to date on state laws. It is advisable for Minnesota and multi-state employers to consider whether their uniform job application and backgrounds check inquiries comply with applicable law, including Minnesota’s new law.
Review current hiring policies. Given all of EEOC’s recent attention on background checks, this is also a good time for employers to review their application and hiring process. This process review should consider restrictions on use of criminal information under EEOC guidance and certain state laws, and also should ensure federal and state Fair Credit Reporting Act compliance.
Minnesota joins Hawaii, Rhode Island, and Massachusetts which have already passed laws that limit the timing of private employers’ inquiries into an applicant’s criminal history during the application process.