Pre-Employment Screening

By Thomas C. Lopez
July 2013

Screening for employee convictions

By now as an employer in the state of Minnesota, you should be aware of the recent legislation enacted to “Ban the Box” signed into law by the Governor and effective January 1, 2014. The legislation (amending MN Stat. §364.021 to now include private employers) is consistent with guidance provided by the Equal Employment Opportunity Commission (EEOC) prohibiting potential violations of the Civil Rights Act in hiring decisions.

What is the “Box”? Many employment applications have a section that requires the employee to disclose the applicant’s criminal history (convictions and sometimes otherwise) to the employer by checking a box if they have been convicted of a crime. This practice, illegal in the public sector since 2009, will now be prohibited in the private sector as a pre-employment screening tool. Violation of the law can ultimately result in fines of $500.00 per violation and up to $2000.00 per month for employers with more than 20 employees (smaller employers are also subject to fines and penalties).

Employers must remember that they may not inquire into an applicant’s criminal record until either the applicant has been selected for an interview or as a condition of an offer of employment. There are certain limited statutory exceptions to the law for certain positions, consult with an attorney to determine if the position qualifies.

Screening smokers

Recent studies have been published indicating that an employee who smokes costs a business $5800.00 more than an employee who doesn’t. While it’s tempting to look at those costs and screen out potential hires who smoke, it’s also illegal in Minnesota (with limited exceptions).

An employer may not screen an applicant based on their consumption of a lawful product (including cigarettes and alcohol) during non-work hours (MN Stat. §181.938). However, as a consideration to non-smoking employees or customers an employer may implement certain policies to limit smoking and smoking effects at the work place. Employers may identify the additional costs associated with employees individual health insurance coverage created by the employee’s use of lawful consumable products and pass those costs on to the employee as long as the difference in costs accurately reflects the actual costs to the employer. Employers should carefully account for such costs in order to avoid violating state and Federal law, including HIPAA.

Screening generally

Generally, an employer can’t ask questions designed to give answers about a protected class. Protected classes covered by the Minnesota Human Rights Act include: race, color, creed, religion, national origin, sex (including pregnancy), marital status, disability, public assistance, age, and sexual orientation.

Remember that interview questions must focus on the education, training and skills required for the position. This can include questions specific to the requirement of the job like an applicant’s ability to complete certain physical tasks. Also, an employer may require an applicant to take a pre-employment test in order to measure essential job related activities as long as it is equally applied to all applicants for the same position – this does not include physical exams or drug and alcohol tests.

Conditional job offer

Minnesota employers may require an applicant to take a physical examination as a condition of hire once the employer has extended a conditional offer of employment to the applicant. This examination may include drug and alcohol testing as well. The employer is required to pay for the cost of testing. Under the ADA, even if an applicant fails to pass such an examination, an employer may need to reasonably accommodate the applicant unless the employer can demonstrate an undue hardship to the employer in doing so. It is important to consult with an attorney when making a claim for undue hardship in order to avoid the penalties for failing to comply with the ADA.

© 2013 Rinke Noonan

Article by Thomas C. Lopez, an attorney at Rinke Noonan in St. Cloud, Minnesota.

Legal Policy