Minnesota Employers – Are You Ready to “Think Outside the Box”?

I must admit, I was glued to Minnesota Public Radio yesterday (May 9, 2013). Although this is not a new phenomenon for me, yesterday I was particularly eager as I awaited the historic Minnesota House vote that would take Minnesota one step closer to becoming the next state to allow same sex couples to legally marry.  The vote came in around noon, and the bill will now move to the Senate. Five hours later, as I got in my car to go home, the trusted voice of MPR Reporter Annie Baxter reminded me that there was another significant vote in the Minnesota House yesterday. The House also passed a bill that will “ban the box,” on employment applications, as they call it. Come 2014, Minnesota employers will be banned from asking about criminal history on initial employment applications.

The new law will make it illegal for employers to ask about applicants’ criminal history in the initial employment application. That little check box that has been part of your employment application for decades now, right after where the applicant is asked whether they are legally authorized to work in the United States, will soon be gone. Here’s why: The Equal Employment Opportunity Commission issued a Guidance in April 2012 finding that asking about an applicant’s criminal history (and then excluding that applicant if they “check the box”) in the early stages of the application process has the effect of eliminating certain minorities from the applicant pool at a high rate. Specifically, the EEOC found that 1 in 3 African American men and 1 in 6 Hispanic men will serve time in prison in their lifetime, compared to only 1 in 17 white males. The EEOC found that such early elimination could give rise to a “disparate impact” discrimination claim.

Long story short, if you ask about criminal history at the beginning of the application process, and eliminate applicants based on that information alone, you are eliminating certain races of applicants at a higher rate than others. This can be seen as discriminatory – and the EEOC (as well as local agencies charged with investigating discrimination in employment) is ready to go after employers because of it. Minnesota lawmakers agree, as both the House and the Senate have approved Senate File 523 which will “ban the box” on all Minnesota employment applications (there are exceptions, mostly relating to public safety employers; schools and other professions working with juveniles; and certain medical professions). If signed by Governor Dayton (as is expected), the law will go in to effect in January 2014. It will be enforced (in large part) by the Minnesota Department of Human Rights (MDHR), which will start issuing warnings to employers in 2014 if their applications are not in compliance.

Starting in 2015, fines may be imposed on employers without warning. These fines can be up to $500 per violation. This does not mean that employers must hire individuals with criminal convictions, if that individual would present a risk for the business. As Commissioner Lindsey of the MDHR has stated, employers should at least have a “conversation” as opposed to making categorical denials of employment. But the decision not to hire must be done thoughtfully and – of course – without a discriminatory motive. It can be done, but the process will be more complicated than it was in the days when “the box” was still legal.

Employers should meet with their employment attorneys to make sure they have a plan in place so that they can be in compliance with these new requirements come January 1, 2014. The potential for large fines and the relatively easy fix leaves employers with a clear plan of action: REVISE YOUR EMPLOYMENT APPLICATIONS! And do it quickly – 2014 is just around the corner.

For a review of your company employment applications for compliance with this and other state and federal requirements, or for other employment-related questions, please contact Minneapolis employment law attorney Greta Bauer Reyes at greyes@foleymansfield.com.

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