Killers and Con Artists Among Your Job Applicants? You Won’t Find Out Until You Decide to Interview Them In Minnesota.

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Looking for a good bookkeeper? Want to make sure Tom Petters and Bernie Madoff don’t apply? In Minnesota starting next year, the answer may be too bad for the employer.

Effective January 1, 2014, employers in Minnesota may not inquire into, consider or require disclosure of the criminal record or criminal history of any applicant for employment until the applicant has been selected for an interview by the employer. In the event that the employer does not interview applicants, the employer may not require disclosure before a conditional offer of employment is made to the applicant.

This “ban the box” legislation prohibits the common employment application form from including a question asking an individual to identify if they have ever been convicted of a crime, have a criminal record or history. Given this change to the law in Minnesota, employers should review current job application and remove this question.

While this law represents an expansion of an existing state law that applies to public employers into private business, there remain differences between what private and public employers may find out about and consider. Interestingly, there is a section of the law that prohibits the State and political subdivisions from using, distributing or disseminating records of arrests not followed by a valid conviction, annulled or expunged convictions and misdemeanor convictions for which no jail sentence can be imposed when considering an applicant for public employment or licensure. This section was not amended to apply to private sector businesses.

Despite this apparent difference, private sector employers should not simply utilize arrest records rather than convictions. The reason is that the Equal Employment Opportunity Commission (EEOC) has indicated that private employers cannot generally obtain and use an individual’s arrest in making employment decisions without running afoul of Title VII of the Civil Rights Act of 1964 as amended. The EEOC has indicated that criminal record exclusions have a disparate impact based on race and national origin. It is the relationship between the conduct in question and the position sought, rather than the existence of the criminal record, that should be the employer’s focus, according to the EEOC.

Still worried that Tom Petters or Bernie Madoff will slip through based on their impressive resumes and get an interview? It appears that the following box would still be permissible on your application:

Are you available to start before 2060?

For more information, please feel free to contact me at slepak@bgs.com or 763-783-5129.

About Scott M. Lepak

Scott Lepak is a Shareholder at BGS and practices in the areas of Labor, Employment and Municipal law. He has been representing employers on labor and employment matters since 1987 including acting as general counsel, chief labor negotiator and lead counsel in arbitrations and litigation. Author of a treatise on the Minnesota Public Employment Labor Relations Act, Scott is a frequent speaker on labor and employment law issues across the state. He also serves as City Attorney for St. Francis and Becker. Scott is an avid fisherman in his spare time.

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