Ban the Box. Betsey Lund, Attorney at Law Neils, Franz, Chirhart, P.A.

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1 Ban the Box 2013 Minnesota Employment Law Update Betsey Lund, Attorney at Law Neils, Franz, Chirhart, P.A. Sponsored by Central MN Society of Human Resource Management (CMSHRM) November 5, 2013 St. Cloud Area Chamber of Commerce Technology and Education Conference

2 Current Minnesota Law: A private sector employer can currently ask an applicant about their criminal history. Criminal background not one of the protected classes under Minnesota Human Rights Act (MHRA). However, EEOC and federal regulations have their own policies and procedures. Comparison to other laws: Wisconsin s Fair Employment Act The current law only restricts public employers from asking employment applicants about their criminal background.

3 Ban the Box Movement Ban the Box refers to a movement across the United States to prevent employers from asking applicants about their criminal background on the employment application. The box refers to the question on the application. Goal is to give applicants with criminal backgrounds a foot in the door. Prohibits employers from screening out all applicants with criminal backgrounds. First laws were enacted in large municipalities. State laws first passed in Hawaii and Massachusetts. Now also passed in Minnesota and 7 other states. Several large municipalities and cities.

4 Employment Applicants 65 million Americans or one in four have a criminal background. Misdemeanors, Gross Misdemeanors, and Felonies. Expungement and other myths Arrests vs. Convictions As many as 90% of U.S. employers use criminal background checks as part of their hiring process. Be aware of requirements for different industries.

5 Change in Minnesota Law Law goes into effect January 1, PUBLIC AND PRIVATE EMPLOYMENT; CONSIDERATION OF CRIMINAL RECORDS. (a) A public or private employer may not inquire into or consider or require disclosure of the criminal record or criminal history of an applicant for employment until the applicant has been selected for an interview by the employer or, if there is not an interview, before a conditional offer of employment is made to the applicant. (b) This section does not apply to the Department of Corrections or to employers who have a statutory duty to conduct a criminal history background check or otherwise take into consideration a potential employee's criminal history during the hiring process. (c) This section does not prohibit an employer from notifying applicants that law or the employer's policy will disqualify an individual with a particular criminal history background from employment in particular positions.

6 Penalties for Non-Compliance MN Department of Human Rights will be agency responsible for investigation alleged violations of the law. St. Cloud Office. January 1, 2014 December 31, 2014: (1) for the first violation, the commissioner shall issue a written warning to the employer that includes a notice regarding the penalties for subsequent violations; (2) if a first violation is not remedied within 30 days of the issuance of a warning, a $500 fine may be imposed. (3) subsequent violations before January 1, 2015, are subject to a fine of up to $500 per violation, not to exceed $500 in a calendar month. Increase in penalties as of January 1, 2015: (1) for employers that employ ten or fewer persons at a site in this state, the penalty is up to $100 for each violation, not to exceed $100 in a calendar month; (2) for employers that employ 11 to 20 persons at a site in this state, the penalty is up to $500 for each violation, not to exceed $500 in a calendar month; and (3) for employers that employ more than 20 persons at one or more sites in this state, the penalty is up to $500 for each violation, not to exceed $2,000 in a calendar month.

7 Compliance with the Law By January 1, 2014, remove any questions on the employment application inquiring about an applicant s criminal background or history. Develop a procedure if the employer decides to ask an applicant about their criminal background. Consider: When with the question(s) be asked? Who will ask the question(s)? Will the question(s) be in written form or verbal? Will you narrow the questions that relate to the specific job duties?

8 Job Related Questions Gravity of the offense misdemeanors, gross misdemeanors, felonies Number of crimes (length of criminal background) Time How long ago did the crime occur? Where Did the crime occur in a different state or jurisdiction? What sentence did the applicant receive? Fine? Probation? Alcohol or drug assessment? Other requirements? Did the applicant target a certain population of people (e.g. children, vulnerable adults, elderly). Did the crime involve handling money?

9 Nexus/Relationship (Green Test) One Court held: an employer s hiring practice or policy must bear a demonstrable relationship to successful performance of the jobs for which it was used and measures the person for the job and not the person in the abstract. Nature of the job: Who are your clients or customers? Job Duties: Does the job require handling money or private data? (e.g. Social Security numbers, credit card numbers, etc.) Or, working with certain populations. Circumstances under which the job is performed: level of supervision or oversight, interaction with coworkers or vulnerable adults.

10 Evidence Considered in Investigating Claims of Discrimination Biased statements stereotypical statements said regarding a person s membership in a protected class. Inconsistencies in the hiring process be consistent across the board when conducting criminal background checks. Inconsistent practices lead a person to believe they have been treated differently = discrimination. Similarly situated applicants applicants have same background but have different criminal backgrounds.

11 Employer Best Practices Eliminate policies or practices that out-right ban applicants with criminal backgrounds. Train managers, hiring officials, and decision-makers about the changes in the law. Develop a policy that considers the nature of the job to the applicant s criminal history. Draft job descriptions which clearly define expectations and requirements. During interviewing process, ask questions that may relate to specific job duties or requirements (consistent with business necessity ). Keep all applicant and employee information private. Consistency throughout the process. Develop a plan or policy before January 1, 2014.

12 Common Questions As a business owner I want to comply with the new law, but what happens if I do everything right and a disgruntled applicant files a charge against my company? What if our company s practice is to offer an interview immediately after the application is completed? Does this law apply to independent contractors? Should I check with my insurance company to see if there is additional coverage I need to protect against potential lawsuits? (Employment Practices Liability Insurance) Can an employer inform applicants that a criminal background check will be required to be considered for the job?

13 Central MN Society of Human Resource Management (CMSHRM) and LinkedIn. A group of human resource professionals who are committed to promoting professional development and networking for constructive ideas. Upcoming Meeting Topics: Embracing Diversity in the Workplace, Social Media, Veterans Re-Entry Programs

14 Questions? Comments? Betsey Lund, Attorney at Law Neils, Franz, Chirhart, P.A nd Street North St. Cloud, MN (320) Betsey@nfclaw.com