Legal Alerts

New Employer Restrictions on Applicant Background Checks

05.15.13

After January 1, 2014, employers will be limited in their inquires about an applicant’s criminal history.

The Criminal Background Check Act [Minnesota Statutes §§ 364.021, 364.06 and 364.09,] also known as the “Ban the Box” law, prohibits employers from inquiring, considering or requiring disclosure of an applicant's criminal history until after the applicant has been selected for an interview, or before a conditional offer of employment is made.

For violations occurring between January 1, 2014 through January 1, 2015, the Minnesota Department of Human Rights (the designated enforcement agency) will issue written warnings to employers, requiring remediation within 30 days. If the employer fails to comply, or has subsequent violations, the employer may be assessed a $500 penalty per violation.

After January 1, 2015, the MDHR will not issue written warnings, and the penalty will vary based on the number of employees. Employers with more than 20 employees at one or more sites in Minnesota may be assessed up to $500 per violation, not to exceed $2,000 in a calendar month. MDHR penalties are the exclusive remedy for violations. Aggrieved applicants have no private right of action and may not sue employers directly.

If an employer has a statutory duty to conduct criminal background checks, such as for positions working with children or vulnerable adults, the employer is exempt from this law, but only as it affects those positions. However, employers should limit their inquiries to the offenses specified by statute, and should not ask criminal history questions of other applicants for whom background checks are not statutorily required.

Questions regarding an applicant's criminal history should be removed from job applications, unless the position is covered by a statutory exception. Only after applicants are selected for interviews or for conditional offers may employers consider criminal history information. Employers should have a clear policy concerning employment disqualification due to criminal history.

The Employment lawyers at Lindquist & Vennum can assist you in revising or adopting new policies in compliance with this law, or in answering questions which may arise.

Contact
LaFromboise, Antoine J.
Communications and Brand Manager
T 612.371.3269

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