
The enactment of Minnesota’s Second Chance law was in
essence the second step of the Minnesota legislature in the last two years
towards creating second chances for employment by persons with criminal
records. One year ago, Minnesota’s “Ban the Box” legislation become
effective. The
Ban the Box law places certain restrictions on the ability of employers to seek
the disclosure of criminal records from job applicants. In general, Minnesota employers may not
lawfully ask job applicants to disclose their criminal history at the
application stage. Employers are allowed
to seek that information once the applicant has been accepted for a job
interview or given a conditional job offer (if interviews are not conducted). Even though Minnesota has provided guidance to employers on the Ban the
Box law, employers have still been encountering some difficulties in complying with that law during its first year. The purpose behind
Minnesota’s Ban the Box law is similar to the concerns that led to the
enactment of the Second Chance expungement law.
Minnesota was the third state to enact a Ban the Box law and
there are now 13 states with similar laws, in addition to the enactment of such
laws by several cities and counties throughout the country. In addition to the various Ban the Box state
laws, the EEOC issued a guidance three years ago requiring employers to perform
an individual, case-by-case analysis before rejecting a job applicant on
criminal history. The EEOC has been
active in enforcing that guidance.
Such “second chance” laws may also actually provide benefits
to employers by expanding the pool of possible job applicants and, ultimately,
new employees. In any event, employers
need to be aware that the landscape is shifting significantly regarding the
ability to seek–and ultimately obtain–broad information regarding the
criminal history of job applicants.
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