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Criminal Background Checks Quickly Becoming a Hot-Button Issue on both the State and National Front

June 2013

By: James B. Sherman, Esq. & Phoebe A. Taurick, Esq.

Readers of our Minnesota Client Alert will recall our article from last month's edition that reported on our state's new law that prohibits employers from inquiring about applicants' criminal backgrounds on job applications. The new law, which goes into effect January 1, 2014, allows employers to ask for such information only after either making a conditional offer of employment, or at the time an applicant is selected for an interview for the position in question.

In the meantime, the Equal Employment Opportunity Commission (EEOC) continues to bring class-action claims against employers who screen applicants based on criminal records. While there is no federal law that directly prohibits employers from weeding out applicants who have been convicted of crimes the EEOC takes the position that doing so disproportionately impacts minorities, due to the higher percentage with criminal backgrounds. The most recent claims pursued by the EEOC under this theory named well-known employers BMW and Dollar General.

Neither the EEOC's interpretation of federal law nor the new Minnesota law, prohibit employers from considering an applicant's criminal background, at least at some point in the hiring process. It really comes down to how employers treat this type of information once they have it. For instance, a blanket policy of rejecting all applicants who have a criminal background is exactly the kind of thing the EEOC is going after on a grand scale, generally involving class-wide claims.

Employers must know how and to what extent criminal background information may be used in the hiring process. The federal Fair Credit Reporting Act places certain procedural requirements on employers that use third party entities to perform criminal background checks. Soon, as of January 1 st, employers in Minnesota will have to contend with our new state law and its detailed procedural requirements to avoid running afoul of the law. This will require substantial changes in hiring practices for most employers in Minnesota.

For assistance, or advice on how to comply with the myriad legal issues relating to criminal background checks of applicants and/or employees, contact Wessels Sherman's knowledgeable attorneys at (952) 746-1700 or email jukruse@wesselssherman.com.