July 25, 2018
"Ban the Box" doesn't prevent criminal background check
During the hiring process, there are many tools you can use to ensure you get the best possible candidate. In some cases, one of these tools is a criminal background check. But before you can ask applicants about their criminal history, there are a few stipulations to keep in mind.
"Ban the box" is a national movement , with over 30 states as well as many cities and counties enacting laws governing the issue. Minnesota is one of nine states with a law that makes it unlawful for both public and private employers to ask on application forms whether job candidates have criminal histories. Nebraska and Wisconsin have similar laws for public employers only. Iowa and South Dakota have no ban the box law for either public or private employers.
The law doesn’t prevent employers from asking whether applicants have a criminal history, but it requires that they wait until a job interview to do so. In cases where the company doesn’t conduct interviews, they can’t ask about criminal histories until they extend a conditional offer of employment.
Typically, employers are still allowed to conduct a criminal background check and exclude applicants if a crime is relevant to the job duties, or if otherwise required by law.
The U.S. Equal Employment Opportunity Commission lays out three factors to help analyze whether criminal conduct is relevant to a job:
- The nature and gravity of the offense
The harm caused by the crime and the elements that went into perpetrating the crime such as deception or intimidation.
- The time that has passed since the offense and/or completion of the sentence
The EEOC doesn’t lay out a specific timeframe, but notes that the risk of recidivism can decline over time.
- The nature of the job held or sought
The job duties, performance circumstances (level of supervision, interaction with vulnerable individuals, etc.) and environment (outside, in a school, etc.).
Pre-employment criminal background checks can be an important tool in certain industries and types of jobs. Use them as part of your hiring process when appropriate, but consult with your employment attorney first.
Other hiring considerations
There are many other tools to consider including in your hiring process:
- Drug and alcohol testing
Especially in trades where drug and alcohol use correlates with increased work injuries, consider making job offers contingent on drug testing. Consult with your employment attorney before starting a testing program.
- Pre-employment physicals
You can conduct a pre-employment physical after making a conditional job offer as long as you require it of all applicants in the same category and only tests for essential job-related capabilities. Consult with an attorney if you decide to withdraw an offer.
- College degree verification
Consider calling schools to verify educational credentials.
- Driving record check
Checking an applicant’s driving record when driving is a job requirement can reveal red flags such as DUI convictions or driving without a license. Motor vehicle records are available through your state’s licensing department.
- Reference checks
In Minnesota, you might find that reference checks are more fruitful now. Statutory changes in Minn. Stat. Sec. 181.967 relieved employers of liability when giving certain reference information in good faith.
- Social Security numbers
Make employment contingent on verification of eligibility to work in the United States. E-Verify is a voluntary system (except for certain employers with federal contracts, where it is mandatory) operated by the U.S. Department of Homeland Security that enables you to check free of charge. If undocumented workers are injured, their employer could potentially pay benefits for years because they will not be allowed to return to work.
A thorough hiring process can prevent costly workers’ compensation claims, and resulting increases in premiums. It’s worth doing your due diligence early so that a new hire doesn’t become a problem employee.
This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.