May 2013

By: James B. Sherman, Esq. & Phoebe A. Taurick, Esq.

On May 13, 2013, Governor Dayton signed new legislation that will prohibit private employers in Minnesota from inquiring into applicants’ criminal record or history until later in the hiring process. Specifically, the new law will permit criminal background checks or inquiries only after: (a) the applicant has been selected for a job interview; or (b) if there is no interview, only after a conditional offer of employment has been made to the applicant.

The new law will apply to all private sector employers regardless of size. While applicants themselves will have no right to sue for violations of this law, the Commissioner of Human Rights will have authority to assess penalties of up to $500 per violation, not to exceed $2,000 per calendar month, against infringing employers. Employers now have just 6 months to revise their job applications, including on-line applications, and any other hiring practices or procedures that may conflict with this new Minnesota law!

Obviously, this new law will make many of the hiring practices currently used by Minnesota employers, as well as those of employers outside the state who hire anyone to work in the State of Minnesota, unlawful. Most notably, the use of job applications that inquire about whether the applicant has been convicted of a crime, felony, etc. (so very common in the private sector), will be unlawful as of January 1, 2014. Employers should be sure to review and revise application forms that conflict with this new law, and move any questions regarding criminal record or criminal history, whether written or oral, either to (a) the interview stage; or (b) post-conditional offer stage of their hiring process if no interview is done. However, timing is not the only issue of which employers need to be aware regarding criminal records of applicants. The Equal Employment Opportunity Commission (EEOC) is concerned about how employers’ criminal background check policies could disproportionately affect applicants of certain races or ethnicities, and holds the position that any exclusion based on criminal record must be “job related and consistent with business necessity.” Employers with blanket policies of rejecting applicants with criminal backgrounds have faced class action lawsuits brought by the EEOC. Therefore, what employers do with any criminal background information obtained during or after the hiring process, is equally important.

For assistance with revising job applications and compliance advice on all aspects of hiring impacted by this new law and other complex federal and state regulations, contact attorneys James Sherman or Phoebe Taurick, at (952) 746-1700, or email jukruse@wesselssherman.com.