Tuesday, January 13, 2015

Minnesota’s New Expungement Law: A Second Step to a Second Chance for Some Potential Employees?

A new year may bring new employment chances for Minnesotans with criminal records. Minnesota’s new “Second Chance” law, providing for broader and more effective expungement of criminal records, became effective on Jan. 1, 2015. Expungement is a process for the sealing of one’s criminal record through a court order. The revised expungement law is meant to provide a more effective remedy for those persons who are able to qualify for an expungement of their criminal record, including ensuring that information held by various governmental agencies is also effectively expunged. Minnesota law previously did not reach those other records, which may include records of criminal law agencies and prosecutors’ offices, among other agencies and offices. A more detailed discussion of this law and its purpose may be found here. One of the primary motivations for the enactment of this revised law was to increase the employability of persons with minor or remote criminal histories.

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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