During the hiring process, there are many tools you can use to ensure you get the best possible candidate. In some cases, one of these tools is a criminal background check. But before you can ask applicants about their criminal history, there are a few stipulations to keep in mind.

“Ban the box” is a national movement , with over 30 states as well as many cities and counties enacting laws governing the issue. Minnesota is one of nine states with a law that makes it unlawful for both public and private employers to ask on application forms whether job candidates have criminal histories. Nebraska and Wisconsin have similar laws for public employers only. Iowa and South Dakota have no ban the box law for either public or private employers.

The law doesn’t prevent employers from asking whether applicants have a criminal history, but it requires that they wait until a job interview to do so. In cases where the company doesn’t conduct interviews, they can’t ask about criminal histories until they extend a conditional offer of employment.

Typically, employers are still allowed to conduct a criminal background check and exclude applicants if a crime is relevant to the job duties, or if otherwise required by law.

The U.S. Equal Employment Opportunity Commission lays out three factors  to help analyze whether criminal conduct is relevant to a job:

• The nature and gravity of the offense

The harm caused by the crime and the elements that went into perpetrating the crime such as deception or intimidation.

• The time that has passed since the offense and/or completion of the sentence

The EEOC doesn’t lay out a specific timeframe, but notes that the risk of recidivism can decline over time.

• The nature of the job held or sought

The job duties, performance circumstances (level of supervision, interaction with vulnerable individuals, etc.) and environment (outside, in a school, etc.).

Pre-employment criminal background checks can be an important tool in certain industries and types of jobs. Use them as part of your hiring process when appropriate, but consult with your employment attorney first.

Other hiring considerations

There are many other tools to consider including in your hiring process:

• Drug and alcohol testing

Especially in trades where drug and alcohol use correlates with increased work injuries, consider making job offers contingent on drug testing. Consult with your employment attorney before starting a testing program.

• Pre-employment physicals

You can conduct a pre-employment physical after making a conditional job offer as long as you require it of all applicants in the same category and only tests for essential job-related capabilities. Consult with an attorney if you decide to withdraw an offer.

• College degree verification

Consider calling schools to verify educational credentials.

• Driving record check

Checking an applicant’s driving record when driving is a job requirement can reveal red flags such as DUI convictions or driving without a license. Motor vehicle records are available through your state’s licensing department.

• Reference checks

In Minnesota, you might find that reference checks are more fruitful now. Statutory changes in Minn. Stat. Sec. 181.967 relieved employers of liability when giving certain reference information in good faith.

• Social Security numbers

Make employment contingent on verification of eligibility to work in the United States. E-Verify is a voluntary system (except for certain employers with federal contracts, where it is mandatory) operated by the U.S. Department of Homeland Security that enables you to check free of charge. If undocumented workers are injured, their employer could potentially pay benefits for years because they will not be allowed to return to work.

A thorough hiring process can prevent costly workers’ compensation claims, and resulting increases in premiums. It’s worth doing your due diligence early so that a new hire doesn’t become a problem employee.

This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.

By Brian Bent
SFM Vice President, Director of Underwriting

You may know you can use your smartphone to hail a ride to the airport. But did you know you can also use an app to find someone to come fix your car, clean your house or even cook you dinner?

These roving drivers, mechanics, housecleaners and cooks are part of what’s referred to as the “gig economy.” Technology allows them to connect with customers directly, which means they can work independently on a job-by-job basis, rather than through an employer.

This fast-growing work arrangement creates new questions about state laws regarding employer/employee relationships, and who will bear the burden of the cost if a gig worker is hurt on the job.

‘Gig economy’ growing fast

A survey conducted by the Federal Reserve Board showed that 36 percent of American adults engaged in some kind of “informal paid work activity” either as a primary or supplemental income source.

From 2005 to 2015, the percentage of American workers engaged in alternative work arrangements, including temporary, independent, contract or freelance work, rose from 10.7 percent to 15.8 percent according to the National Bureau of Economic Research .

Some workers choose this kind of arrangement for the freedom and flexibility. Others just need the extra money, or do it reluctantly because it’s the only type of work they can find.

Digital platforms account for some of the growth, but a larger portion is due to companies increasingly opting to hire workers as contractors rather than permanent employees, according to a 2016 study by Lawrence Katz and Alan Krueger .

Arrangement creates a gap in worker protection

Many of the laws and benefits established to protect workers, including workers’ compensation, are contingent on an employer/employee relationship.

This means gig economy workers might not have those protections unless they choose to purchase them at their own expense. For example, a driver considered an employee of a commercial delivery company is entitled to employer-paid workers’ compensation coverage by law, but a ride-hailing app driver is not in most states. So, if the delivery driver gets in an accident on the job, the medical costs and lost wages would be covered. Ride-hailing drivers would have no such protection, unless they had previously purchased their own coverage.

The gap goes beyond workers’ compensation — medical benefits, retirement benefits and unemployment insurance are all often contingent upon being legally defined as an employee.

Public and private sectors looking at ways to close the gap

Lawmakers, agencies and the companies that run digital platforms are starting to look at ways gig workers can receive the same protections as traditional employees.

The Equal Employment Opportunity Commission has made it a priority to address fair employment practices in the gig economy, according to national employment law firm Littler .

A U.S. Senate committee held a hearing this year on providing retirement benefits for independent workers.

Some state and federal lawmakers have made proposals to provide portable benefits workers could keep while moving from job to job. The State of New York already has a requirement that ride-sharing platforms Uber and Lyft cover workers’ compensation for their drivers.

Uber is piloting a program in other states to provide some medical and wage-replacement benefits to drivers who are injured on the job. It’s a voluntary program
paid for by the drivers, and the benefits are more limited than those provided by workers’ compensation law.

It doesn’t seem there’s any clear, universal solution in sight yet to these lacking worker protections, but it’s encouraging to see that lawmakers and large companies recognize the problem and are trying to find ways to fix it.

As our economy and approach to work evolves, it’s important that our laws keep up so we maintain established worker protections.

In the meantime, if you use the services of those in the gig economy, it’s important to understand your employment relationship and do what you can to protect yourself from liability.