New 'Ban the Box' law tripping up Minnesota employers

• Article by: JENNIFER BJORHUS 
• • Star Tribune, November 17, 2014
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  • “Ban the box” sounded like a simple concept. Companies can no longer ask about a job seeker’s criminal history on initial employment applications.
    But some of the state’s marquee employers fumbled the new law, which took effect Jan. 1.
    The Minnesota Department of Human Rights has investigated complaints involving the job applications of more than 50 companies and in the majority of cases found applications violating the ban-the-box law, according to data obtained by the Star Tribune. So far about 40 companies “responded favorably” to notification letters the department mailed out, with most fixing applications. The department, charged with enforcing the new law, is awaiting responses from about 16 employers.
    Many of the problem job applications still asked if the person had ever pleaded guilty to or been convicted of a crime, asked other questions about misdemeanor convictions, or asked about alcohol- or drug-related driving offenses.
    In some cases, as with Target and 3M, the problem applications may have been old ones that somehow surfaced, Human Rights Commissioner Kevin Lindsey said in an interview.
    The one company fined so far was Elgin Milk Service Inc., a trucking company in the southern Minnesota town of Elgin. It was fined $500 for not complying in a timely manner. The company paid up. Account manager Lynette Bruske said the company just didn’t know about the law change. The fine surprised her.
    “I just thought that was real steep for just eliminating a page out of the application,” Bruske said.
    Morrie’s Automotive Group, based in Minnetonka, was also fined but appealed. The fine was overturned, the applications fixed and the matter resolved, Human Rights said.
    One transportation company turned out to be exempt from the new law because a federal law requires it to ask commercial motor vehicle driver applicants about previous convictions.
    Commissioner Lindsey said the number of violations isn’t large and that he expects more complaints, particularly about smaller employers outside the metro area who may not be aware of the change. Still, he said it was “a little bit disappointing” to find complaints about the state’s Fortune 500 companies.
    It’s estimated that one in four adults in the U.S. has an arrest or conviction on record, and Minnesota’s new law is aimed at giving ex-offenders a fairer shot in the hiring process. Minnesota was part of a wave of states that adopted some type of ban-the-box law in the last few years restricting initial inquiries into criminal histories. Thirteen states now have such laws. Six of them, including Minnesota, have extended the ban to private employers.
    Warning, fines
    Employers in Minnesota that want to ask about previous convictions or conduct a criminal-background check are now supposed to wait until after granting an interview or extending a conditional job offer.
    Companies have 30 days to change their applications after getting an initial warning letter, and then face of a fine up to $500 a month.
    Michelle Rodriguez, senior staff attorney at the National Employment Law Project, said “a simple application fix does not seem difficult.”
    “Target was on public record as of last year … for committing to remove the question from the job application, so that’s especially surprising to hear,” Rodriguez said.
    In March, the department sent a letter to Target saying it reviewed a Target job application and that it asked “Have you been convicted of a crime other than a minor traffic violation?”
    “It’s impossible to know where that application came from,” said Target spokeswoman Molly Snyder.
    Snyder said Target has been out front supporting efforts to restrict questions about previous convictions and that Target “is a leader in this space.”
    “We have absolutely no reason to believe we have been, or are now, out of compliance,” Snyder said.
    She noted that the company removed previous conviction questions from its applications in Minnesota four months before the law took effect. Since September it has notified all of its stores three times instructing them to destroy old paper applications.
    In August, the department notified Target that it had received the company’s revised employment application and is satisfied that the retailer was in compliance.
    As for 3M, Commissioner Lindsey said the company wrote back acknowledging that it was “theoretically possible” that there could be a hard copy application that violated the law, but that the company actually banned the question on initial applications in 2011. 3M did not respond to a request for comment.
    A General Mills spokeswoman said its problem occurred on its recruiting website, where a drawn-out system upgrade meant the criminal history question was not removed until June 1.
    Human Rights is creating extra guidance to help employers understand when they can and cannot ask about an applicant’s criminal background.
    Lindsey said he thinks the state is facing a serious labor shortage and can’t afford to discriminate.
    “If we’re excluding people because they have a criminal history but they may not pose an imminent risk or significant risk in the workplace, then we are harming not only them, but harming our own economic competitiveness,” he said.
    While the new law enjoyed wide support, at least one ex-con who lives in Minnetonka said it hasn’t made it easier for him to get a job. The 55-year-old, who asked to be identified only by his nickname, Fima, said he came to the United States from the former Soviet Union as a political refugee.
    Fima said he worked for Mitsubishi until he was fired in 2002 when the company found pornography on his laptop. Court documents show there were more than 1,000 images of minors on the hard drive. He disputes how the images got there but out of fear of losing at trial pleaded guilty to misdemeanor possession of pornographic work involving a minor. He said he hasn’t been able to get a job since.
    Box still there
    Recently, Fima did an informal Skype interview with Robert Half Technology, which then sent him an e-mail with two attachments. One was an employment application with the box on it, although instructions state not to answer the question if applying in Hawaii, Indiana, Newark N.J., Massachusetts or Philadelphia.
    Also attached was a one-page form for Minnesota with the question. The form makes clear that when applicants complete their interview, they’ll be asked about prior criminal convictions, but it says not to fill out the form until after an in-person interview or submitting an application.
    Robert Half spokeswoman Jamie Carpen said the application was outdated and should have listed Minnesota as one of the no-box states. Carpen said she doesn’t think the application was sent to anyone else and called it a “clerical error.”
    Fima said that to him the message was clear: Despite a delay in questions about his conviction, he would continue to be hobbled by his past. “I feel that I’m worthless,” he said.
    
    

Jury Awards $499,000 Against EmCare in EEOC Sexual Harassment and Retaliation Case

EEOC Press Release
October 27, 2014

Physician Outsourcing Group Fired Employees for Reporting Sexually Charged Environment, Jury Found

DALLAS - A Dallas federal court jury, on Friday, October 24, 2014, returned a verdict awarding almost half a million dollars to three former employees in a sexual harassment and retaliation lawsuit by the U.S. Equal Employment Opportunity Commission against EmCare, a provider of physician services, the federal agency announced.

The jury of two women and four men awarded former Executive Assistant Gloria Stokes $250,000 in punitive damages based on the claim that she was sexually harassed by her supervisor, the division CEO, Jim McKinney. Stokes, who filed a discrimination charge with the EEOC, also individually intervened in the Commission's lawsuit and was personally represented by Laura Hallmon of Fielding, Parker & Hallmon LLP. The case was tried before U.S. District Judge Jorge Solis.

The EEOC also sought relief for Bonnie Shaw, an EmCare credentialer, and Luke Trahan, a recruiter, based on retaliatory discharge. The jury awarded Shaw and Trahan $82,000 and $167,000, respectively, to compensate them for lost wages and benefits as a result of having been fired for reporting and opposing a sexually hostile work environment within the AnesthesiaCare Division of EmCare.

The jury verdict followed five days of trial, including the presentation of evidence by the EEOC about constant lewd sexual comments and behavior of former AnesthesiaCare CEO Jim McKinney, as well as several other management-level employees in that Division. Stokes, Shaw and Trahan all testified about the lack of an appropriate response by Human Resources to their complaints about the misconduct. Shaw and Trahan testified about jointly reporting to human resources that McKinney made an inappropriate remark to Shaw's then-15-year-old daughter at a "Bring Your Child to Work Day" event. Shaw and Trahan were both fired, within an hour of each other, just six weeks later for reasons the company alleged were performance issues.

Sexual harassment and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964. The EEOC filed suit (Civil Action No. 3:11-CV-02017-P) in U.S. District Court for the Northern District of Texas after first attempting to reach a pre-litigation settlement through its conciliation process.

"Ms. Stokes, Ms. Shaw, and Mr. Trahan spent their time at EmCare working diligently to do their jobs well despite the pervasive sexual environment that human resources allowed Jim McKinney to create and perpetuate," said EEOC Senior Trial Attorney Meaghan Shepard. "Their complaints were ignored, and instead of getting support from HR, Ms. Shaw and Mr. Trahan were fired for daring to speak out against the division CEO. By today's verdict, it is clear that all three have finally been heard."

EEOC General Counsel David Lopez added, "The EEOC stands ready to take cases to the people through the courthouse, and to shine light on these stories of discrimination and retaliation whenever early administrative resolutions cannot be reached. It is particularly important for us to act to protect employees who have risked their jobs simply because they have stepped up to challenge discrimination in the workplace."

Janet Elizondo, director of the EEOC's Dallas District Office, said, "I am very pleased with the excellent work of our investigative staff in preparing the case that led to this great result. Retired EEOC Investigator Norma Warner returned to provide rebuttal testimony that I'm sure was critical in helping this jury reach its decision."

EmCare has more than 750 practices serving nearly 600 hospitals, hospital systems and other healthcare facilities nationwide.

The EEOC is responsible for enforcing federal laws against employment discrimination. Further information about the agency is available at www.eeoc.gov.