Hunton Employment & Labor Perspectives

The “ban the box” movement continues to sweep through state legislatures.  These laws, which vary in terms of scope and detail, generally prohibit employers from requesting on applications information about applicants’ criminal histories.  Recent legislation in two states applies “ban the box” prohibitions to private employers in the state.

On December 1, a new North Carolina law went into effect that prohibits employers from inquiring about arrests, charges or convictions that have been expunged.  This prohibition applies to requests for information on applications and during interviews with applicants.  In addition, applicants are not required to disclose expunged arrests, charges or convictions.  Accordingly, employers in North Carolina may continue to inquire about arrests, charges and convictions that have not been expunged.

On January 1, 2014, a new Minnesota law goes into effect that prohibits employers from inquiring into, requiring disclosure of or considering the criminal record or history of an applicant until the applicant has been selected for an interview or, if there is no interview, until after a conditional offer of employment has been made.  The law exempts those employers who have a statutory duty to conduct a criminal history background check or otherwise take an applicant’s criminal history into consideration during the hiring process.  Additionally, the law permits employers to notify applicants that the law or the employer’s policy will disqualify an applicant with a particular criminal history from employment in particular positions.

Employers should review their applications and hiring practices to ensure compliance with the new laws and ensure managers involved in the hiring process understand when, and to what extent, they are permitted to inquire about criminal histories.  As previously reported on HELP, the U.S. Equal Employment Opportunity Commission is taking enforcement actions against employers on the basis of their use of criminal histories in hiring and, thus, employers should also be cognizant of the Commission’s guidance on the issue.