by Kate Bischoff, Esq., Gray Plant Mooty, Minneapolis
Here’s a surprising statistic: One in four Americans has a criminal record. Studies show that the existence of a criminal record makes it difficult for ex-offenders to find a job. In addition, without a job, an ex-offender is more likely to be re-incarcerated.
Facts like these are behind a growing movement to keep ex-offenders from becoming an unemployable class.
That’s why Minnesota is joining a number of other states in prohibiting employers from asking job applicants about their criminal records prior to a job interview.
Here’s what you need to know about Minnesota’s new “ban the box” law, which takes effect Jan. 1.
Banning the box
The new law requires most employers to “ban the box,” meaning that employment applications may not seek information on whether the applicant has a criminal history.
The law does not apply to employers that have a statutory duty to conduct aor to consider criminal history when hiring.
However, all other employers must remove any criminal history questions from their online and paper applications.
Must we hire an ex-offender?
Minnesota’s new law does not take away an employer’s right to determine who it will hire. Instead, the law only affects the timing of when an employer may ask about an applicant’s criminal history.
Under the law, a covered employer may not ask about an applicant’s criminal history until the applicant is called in for an interview or, if the employer does not conduct interviews, after a conditional offer of employment has been made.
The purpose behind this timing change is to increase an ex-offender’s opportunity to be hired. A National Institute for Justice study showed that ex-offenders are more likely to be hired if they have an opportunity to interact personally with a potential employer.
Ultimately, however, the employer may still determine if the applicant is suitable for hire.
Can we ban hiring ex-offenders?
Minnesota’s new law does not address whether an employer can ban the hiring of ex-offenders. The EEOC’s position, however, is that an automatic ban on hiring ex-offenders violates anti-discrimination laws.
In addition, it is unlawful under anti-discrimination laws to act solely based on an arrest record (as opposed to a conviction or other concrete evidence that criminal conduct occurred). Instead of a blanket ban, an employer should conduct an individualized analysis to determine if there is a sufficiently tight nexus between the crime at issue and the recency of the offense to bar an applicant from employment.
In 2012, the EEOC issued written guidance stating that the following types of factors should be considered as part of this individualized assessment:
- The nature and duties of the position
- The nature and gravity of the criminal offense or conduct
- The time that has passed since the offense or completion of the sentence and any available recidivism data
- The existence of an applicable law that may prohibit the employer from hiring the individual based on his or her criminal history.
Here are some examples of how these factors might be applied to various fact scenarios:
An applicant served 15 months for felony drug possession three years ago. Now she is applying for a stock clerk position at a retail store. She meets all the necessary requirements for the position and held a similar position for one year. Because the applicant’s crime has no real bearing on whether the applicant can safely perform the position’s duties, the offense happened three years ago and the applicant has the requisite experience, her conviction should not disqualify her from the job.
An applicant served three months for a burglary a year ago. He applies for a position as an accounting clerk, and the job’s duties involve access to company funds. Although the applicant meets all the necessary requirements for the position, the company may be able to lawfully reject him for the position given that the nature and recency of his crime—stealing—may pose an unacceptable risk.
Why the law is important
With national criminal recidivism rates hovering around 50%, it is becoming more and more important for ex-offenders to find work and be able to financially support themselves. The National Institute for Justice found that between 60% and 75% of ex-offenders remain unemployed for up to a year after their release.
If more ex-offenders are able to find work, the hope is that fewer will reoffend.
Kate Bischoff is an attorney at Gray Plant Mooty, specializing in HR issues. Contact her at (612) 632-3000 or firstname.lastname@example.org.
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