Employers Must Walk Tightrope When Conducting Criminal Background Checks
By David James and Joe Schmitt, Nilan
On May 14, 2013, Minnesota joined several other states in adopting a statute restricting employers’ ability to inquire into applicants’ criminal histories. The new Minnesota law precludes employers from asking applicants about their criminal histories or performing a background check until the applicant has been selected for an interview or offered employment. The legislation does not prohibit employers from declining to hire an applicant based on his or her criminal history.
Minnesota is part of a general trend in this area. At the federal level, the Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination statutes, has issued guidance expressing its view that employers should not deny employment based on arrest records and should only utilize conviction records after evaluating the nature of the job, the severity of the conviction, the time elapsed since the conviction, and the applicant’s rehabilitative efforts.
Various state legislatures, including Illinois, Michigan, North Carolina, New Jersey, New York, Pennsylvania and Rhode Island are considering potential restrictions on an employer’s ability to conduct background checks on applicants. Several municipalities, including Seattle, St. Paul and Syracuse are also considering ordinances that would enact similar restrictions.
In the case of the Minnesota statute, the legislation restricts how employers may consider a criminal record, but does not preclude them from doing so. The employer will ultimately be able to find out about the applicant’s theft conviction — either through questions posed to the applicant or through a criminal background check — and is free to decline to hire the applicant on that basis. The Minnesota statute goes into effect on January 14, 2014.
In light of the various new restrictions on background checks, employers should ensure that they are conducting background checks in a way that accomplishes the goal of protecting employees, customers, and businesses, while avoiding liability under state and federal law. In Minnesota, employers should refrain from inquiring about an applicant’s criminal background until the interview stage. In and outside of Minnesota, organizations should inquire about convictions, not arrests.
The EEOC Guidance advises employers not to inquire regarding arrests, and the EEOC is aggressively pursuing claims against employers who decline applicants based on arrests and not convictions.
David James and Joe Schmitt are shareholders in the labor and employment group at Nilan Johnson Lewis. Members of the æÃæü¤ÇéÎåÔÂÌì are entitled to 30 minutes of free advice from David or Joe regarding labor and employment issues as an additional benefit of FEMA membership.
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