Ban the Box Laws Ring in the New Year Affecting Private Employers

Author: David B. Weisenfeld, XpertHR Legal Editor

December 27, 2013

Effective January 1, 2014, private employers in Minnesota and Rhode Island will be subject to new ban the box laws prohibiting criminal background inquiries on job applications. "Ban the Box" refers to the box often included on job applications that prospective employees are asked to check off if they have ever been convicted of a crime.

Since 2009, Minnesota has had a law prohibiting public employers from asking criminal history questions on job applications. But its new law now extends that ban to all private employers. The measure prevents employers from inquiring into an applicant's criminal history until the individual has been selected for an interview or a conditional job offer has been made. It does not prevent employers from conducting a background check. Limited exemptions are provided for positions subject by state law to mandatory background checks, such as school bus drivers or jobs with the Department of Corrections.

Minnesota private employers that violate the new law could face fines beginning on January 1, 2015. During 2014, a written warning will be provided to any noncompliant employer. It will then have 30 days to remedy the situation before a fine is levied.

In light of this new Ban the Box law, the Minneapolis-based Target Corporation, the nation's second largest retailer, announced in October that it will eliminate the criminal history box from its job applications nationwide in 2014 - not just in Minnesota.

New Wave of Protection in the Ocean State

In addition to covering all public employers, Rhode Island's new Ban the Box law will apply to private employers with four or more employees, as well as any person acting in the interest of the employer - either directly or indirectly. Private employers will be prevented from asking whether an applicant has ever been arrested, charged with or convicted of a crime.

Under the measure, Rhode Island employers may still ask about an applicant's criminal background during a job interview and any time afterwards, but not on job applications. The following limited exceptions are provided at the application stage:

  • Applications for law enforcement agency positions;
  • Situations where federal or state law prevents an employer from hiring persons convicted of a specified crime; and
  • Where a standard fidelity bond is a job requirement and a prior offense would disqualify an applicant from obtaining such a bond.

The law empowers both the Rhode Island Commission for Human Rights and the state's courts to provide a range of remedies to aggrieved applicants, including damages, attorney's fees and costs.

Ban the Box Landscape Nationwide

Massachusetts and Hawaii also have statewide Ban the Box measures affecting private employers. These laws are intended to give ex-offenders a chance to prove their qualifications in an interview setting while eliminating extra barriers to re-entering the workforce.

Six states have Ban the Box laws that apply only to public employers, including:

  • California;
  • Colorado;
  • Connecticut;
  • Illinois;
  • Maryland; and
  • New Mexico.

Seattle, Philadelphia, Buffalo, and Newark, NJ have passed Ban the Box ordinances that extend to most private employers.