“Convicts Shall Apply” – So Says the State of Minnesota (And Illinois is Likely Next)

Contributed By Jeffrey A. Risch

In line with a minority but growing trend, on May 13, 2013 Minnesota enacted the Criminal Background Check Act.  The new law, effective January 1, 2014, restricts an employer’s ability to request any criminal history (including actual convictions) from a job applicant.  The new law allows employers to only consider or require disclosure of an applicant’s criminal history until after the applicant has been selected for an interview, or if there is not an interview, before a conditional offer of employment is made.  Violations will be investigated and monetary penalties assessed, exclusively by and through the Minnesota Department of Human Rights.  Exceptions do exist for employers who have a statutory duty to inquire, request and consider criminal convictions or histories. Minnesota joins other states like Massachusetts and Hawaii with the so-called “BAN THE BOX” legislation directed at private and public employers.  And, Illinois is likely next…

Illinois’ proposed Employee Background Check Act (HB 3005), would prohibit any employer, on the face of an employment application or through any other means, from inquiring into, considering or requiring disclosure of the criminal record or criminal history of a candidate for employment until the candidate 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 candidate.  However, such restrictions would not apply to employers who are required to exclude candidates from employment because of municipal, state, or federal law or regulation.  Also, under the proposed law, if an employer hires a candidate pursuant to the law, the employer shall have a rebuttable presumption in any legal proceeding against the employer regarding the employment of the candidate that the employer performed its due diligence and acted in good faith in hiring such candidate. The Illinois Department of Labor would investigate and assess monetary penalties for willful and knowing violations.

All employers should pause and carefully review their applications as well as their hiring practices.  The “one size fits all” approach is done (and has been for quite some time) for multi-state employers.  Also, under EEO and anti-discrimination laws, most employers are strictly prohibited from using criminal convictions or histories as a per se basis to deny employment or other opportunities in the workplace.

SmithAmundsen LLC continues to monitor such developments on a local, regional and national basis for our clients and contacts.