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Statewide view: 'Ban the box' law would mean rewiring hiring

Two days ago, the Minnesota House of Representatives voted to adopt "ban the box" legislation, which would place new limits on employers' ability to inquire about job applicants' prior arrests or criminal convictions. Specifically, the law would ...

Two days ago, the Minnesota House of Representatives voted to adopt "ban the box" legislation, which would place new limits on employers' ability to inquire about job applicants' prior arrests or criminal convictions. Specifically, the law would prohibit employers from asking about applicants' criminal histories or performing background checks until after the applicant has been selected for an interview or offered a job. The law does, however, exempt certain categories of employers -- including banks, nursing homes and others that provide services to vulnerable people -- from its prohibitions if they are otherwise required by law to perform background checks.

An identical version of the bill passed the Senate last month, and now it heads to Gov. Mark Dayton's desk for his expected signature into law.

While this proposed law would restrict when employers may ask about a criminal record, it would not prevent them from doing so. So, for example, an applicant for a cable-installer position who has been convicted of burglary cannot be asked about his or her criminal history until the interview stage. At that stage, the employer could find out about the applicant's burglary conviction through questions asked during the interview or through a background check. And the employer would be free to decline to hire the applicant on the basis of the prior conviction.

Advocacy groups are pushing for even more restrictions on employer background checks, so the Minnesota law may be only the first in a series of incremental steps to joining states such as Wisconsin, which place significant restrictions not only on when employers can ask about an applicant's criminal history but on whether they can act on that information. Wisconsin law prohibits employers from refusing to hire applicants, terminating current employees or otherwise treating differently on the basis of an arrest or conviction record unless the employer can affirmatively prove that the circumstances of the charge or the conviction "substantially relates" to the circumstances of the particular job. An aggrieved applicant can therefore bring a lawsuit against the prospective employer, and the burden is on the employer to prove why the applicant should not have been hired rather than on the applicant to prove why he or she should have been hired.

There is obviously a case to be made for giving people a second chance after a criminal conviction. However, we should take a moment to acknowledge the value of criminal background checks to employers and to society as a whole. Restricting the use of background checks increases the possibility of hiring applicants with criminal convictions who commit crimes against co-workers, employers or members of the public. Moreover, if an employer hires an applicant who has a criminal conviction and that applicant goes on to harm a co-worker, steal from a member of the public, or engage in other misconduct while on the job the employer may well be held responsible for that misconduct. Minnesota courts actually have upheld significant verdicts against employers for "negligent hiring" -- that is, for hiring an applicant with a criminal conviction and placing that applicant in a position in which the applicant could harm a co-worker or member of the public. Legislation restricting the use of background checks may hamstring employer efforts to protect the public and avoid such claims.

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Assuming Gov. Dayton signs the bill into law, these restrictions will go into effect in January 2014. The legislation will be enforced exclusively by the Minnesota Department of Human Rights, meaning that, unlike in Wisconsin, applicants would not be permitted to bring a lawsuit when a prospective employer fails to follow the law. However, the department may assess fines against employers who fail to comply with the law.

Although they would have until January 2014 employers would be well-advised to already begin reviewing and revising their applications for employment and interview processes, and to retrain recruiters, human resources personnel, and others involved in hiring decisions in order to ensure they will be in compliance, assuming the ban goes into effect.

Failure to do so will, ironically, be against the law.

Joseph Schmitt and Mark Girouard are attorneys at the Nilan Johnson Lewis law firm in Minneapolis (nilanjohnson.com). Both concentrate on management-side labor and employment law. They wrote this for the News Tribune.

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