Businesses Prepare To “Ban The Box”

According to Gray Plant Mooty attorney Carl Crosby Lehmann, the new law will have little effect on businesses.

With the new year just around the corner, Minnesota’s expansion of the “Ban the Box” law is on the mind of many private employers. But at least one legal professional contends that the impact of the new law on local companies will be minimal.
Since 2009, state law has banned public employers from asking job applicants about their criminal record at the time a person applies for a job; but come January 1, that the vast majority of private employers will be prohibited as well.
The law, sponsored by Representative Tim Mahoney and Senator Bobby Joe Champion, will remove the check box on applications that asks applicants if they have ever been convicted of a felony or gross misdemeanor.
Instead, employers will need to wait until they interview the applicant before they can ask the question. For jobs that don’t include an interview, employers will need to wait until they present a conditional offer of employment before asking.
Carl Crosby Lehmann, head attorney of the employment group at Minneapolis-based law firm Gray Plant Mooty, told Twin Cities Business that the law will have little effect on businesses, despite the anxiety that he’s perceived from the business community.

“Some businesses are saying the sky is falling with this ‘ban the box,’ law and it’s a complete over-reaction,” Lehmann said. “This law does not impact an employer’s ability to conduct background checks, employers will still do that, and it doesn’t even impact their ability to ask applicants if they have a criminal history; they just can’t ask it at the application phase.”
The purpose of the law is to give ex-offenders an opportunity to introduce themselves to a potential employer before the employer immediately discards their application based on the checked box.
“We have a real problem in our society with the number of ex-offenders and their inability to get jobs, which is creating a class of individuals who are unemployable,” Lehmann said. “And it’s a growing problem because more and more employers are using background checks and more companies are providing background checks, quickly and cheaply, so it’s very hard for these people to get employment.”
Lehmann admits that if employers are adamant about not allowing people with a criminal history to work for them, they still aren’t going to hire them, and the rejection will just come a bit later in the process.
Although Minnesota is one of only a few states to “ban the box” for private employers, Minneapolis-based Target announced in October that it would eliminate the criminal record box in all its applications across the entire corporation, rather than just in its Minnesota locations, when the law goes into effect.
Employers that violate the new law in 2014 will receive a written warning after their first offense, and if the employer fails to address the issue within 30 days, it could be fined up to $500, with a maximum fine of $500 per month. After 2014, the penalty maximum increases for employers with more than 20 employees: While they still can be fined $500 per violation, the maximum fine will be $2,000 per month.
Some companies, which are statutorily required to do background checks, will be exempt from the law. Businesses that deal with vulnerable adults or children, such as schools and health care providers, will most likely maintain the criminal box on their applications without penalty.
In addition to the “Ban the Box” legislation, about six other new state laws will go into effect on January 1st, click here to see the list.