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Special session gives lawmakers second shot at eliminating Minnesota’s ‘ban the box’ loophole

For years, Minnesota has prohibited both public and private employers from asking job-seekers about their criminal history on initial application forms. Yet it somehow still allows the question to appear on applications for one class of job: appointments to state boards and commissions.

State Sen. Bobby Joe Champion
State Sen. Bobby Joe Champion, the Minneapolis DFLer who was a lead sponsor of the bill that passed in 2009, said he continues to work on the issue.
MinnPost photo by Peter Callaghan

In recent years, even as Minnesota was considered a pioneer in ending the practice of asking job seekers about their criminal histories, it somehow was still posing the question to applicants for one class of job: appointments to state boards and commissions.

In 2009, Minnesota became the second state in the nation to prohibit public employers from including a criminal history question on initial application forms. In 2013, private employers were added to the law, a provision enacted with bipartisan support

But neither bill negated a 2004 provision that makes one’s criminal history one of the first pieces of information solicited for appointments to state boards and commissions. That means that an applicant for a job processing income taxes in Minnesota doesn’t have to initially declare a felony conviction — but an applicant to be on the Board of Cosmetology does.

But earlier this year, the governor, the secretary of state, two state government commissioners and the prime sponsor of past so-called “ban the box” bills pledged to complete the effort. But no bill was introduced and no amendment was offered during the 2020 regular session of the Minnesota Legislature.

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Now, as the Legislature begins a special session with equity and criminal justice reform at center stage following the homicide of George Floyd, most say the time has come, again, to build consistency in state law where ban the box is concerned.

“For many of us, many were surprised when that was brought up last year that that was the case. Banning the box is important,” Walz said Thursday. “It’s systemic … these are not peripheral issues, they’re really important. I would certainly encourage us doing that.”

An ‘easy win’ for special session?

While many of the state’s 234 boards and commissions are advisory or technical, the criminal background question also shows up on the application for boards that play significant roles in state government: the Public Utilities Commission, the Sentencing Guidelines Commission, the Police Officer Standards and Training Board and the Metropolitan Council.

Gov. Tim Walz
MinnPost photo by Peter Callaghan
Gov. Tim Walz
The ban-the-box provision is meant to keep people with criminal records from being eliminated in the first step of a job application process, though it doesn’t prevent questions about a person’s background from being asked in later stages of a hiring process. Minnesota’s version of the law also has exemptions for positions that legally require some form of a background check, including jobs at the Department of Corrections.

Thirty-five states now have some form of ban-the-box legislation. Viewed as a criminal justice reform measure, it has been backed by powerful groups across the political spectrum, including the American Civil Liberties Union and the conservative billionaires Charles Koch and his brother, the late David Koch.

Sen. Bobby Joe Champion, the Minneapolis DFLer who was a lead sponsor of the bill that passed in 2009,  said he continues to work at the Legislature on eliminating Minnesota’s loophole. “That’s one of those things we thought was fixed,” he said. “It is something that we are committed to changing … because we really do think it is important for individuals to be judged on their skills and qualifications and not on their past. We don’t want anything that would hamper that opportunity. We will continue to work on that.”

Secretary of State Steve Simon
MinnPost photo by Bill Kelley
Secretary of State Steve Simon
Secretary of State Steve Simon said Monday that he has talked with Champion and expects bill language to be offered soon. “This would seem like a really good time, when attention is being focused on these issues,” Simon said. “It shouldn’t be controversial, but for some reason  some people think it should be.” 

“This seems like an easy win for a special session like this,” Simon continued. “In the grand scheme of things, compared with restructuring and reimagining public safety, it’s a relatively small gesture but one that would matter to a lot of people who want to serve in some capacity.”

Champion said Tuesday that given the short session, he might look for another bill to amend to include the measure.

Coronavirus ‘sucked the air out of the room’

Simon’s office processes applications for appointments to boards and commissions, though it is mostly a ministerial function. The decisions are made by others, particularly the governor. Still, the requirement is in the section of state law governing Simon’s office and has been there since 2004, when it was added via a secretary of state omnibus bill without any debate on the provision.

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While the regular session of the Legislature was disrupted in mid-March by the coronavirus epidemic, more than 1,500 House bills and 1,400 Senate bills were filed between Feb. 11 and March 12. None related to ban the box.

As of Monday, no bill has been filed in the special session, either. There was no request from Gov. Tim Walz or Secretary of State Simon to legislate the matter, though both said they thought the question could discourage good applicants. Nor was there a request from Corrections Commissioner Paul Schnell or Human Rights Commissioner Rebecca Lucero, though both said it could deny second chances for former felons and was inequitable.

Schnell is also Walz’s lead on criminal justice reform. In January he described the fact that the question was still being asked on boards and commission applications as “bizarre.” 

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In late May, Schnell said the coronavirus pandemic distracted the administration from the issue. “There’s no doubt we have work to do and the pandemic I think sucked a lot of air out of the room and drew a lot of attention, and for good reason,” Schnell said. “The ban the box, especially around boards and commissions, are things we still want to look at. I think there are places in our organization where we want to make sure people, regardless of their previous history, can fully access and get on to any of the boards that we operate.”

Corrections Commissioner Paul Schnell
MinnPost photo by Peter Callaghan
Corrections Commissioner Paul Schnell
But Schnell said he did think it would not be “an easy lift” in the GOP Senate.

“I wouldn’t go so far as to say there wasn’t a lot of work to be done legislatively, and a lot of politicking and a lot of educating and those sorts of things,” Schnell said. “Do I believe it would have been an easy lift? No. But, I think COVID certainly created a challenge I don’t think any of us would have anticipated.”

Simon said the provision was to be included in a bill to clean up outdated provisions in the code governing his office. But “then COVID hit and all bets were off,” he said. “It ended up on the cutting room floor.”

Prior to the beginning of the 2020 session, in February, Senate Majority Leader Paul Gazelka said he was willing to look at the issue. But the East Gull Lake Republican said there are some experts who think the inability to ask the question leads some employers to be less likely to consider young black men and young Hispanic men. Therefore, Gazelka said, not allowing the questions to be asked could have unintended and even opposite impacts. 

That would also be an argument for repealing ban the box for all applications, something no one is proposing. At the same pre-session forum, House Speaker Melissa Hortman said: “If it’s a loophole, we need to get rid of it.”