In 2012, the EEOC issued guidance on employers’ use of criminal history information to exclude individuals from employment. [See Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act]. Because persons of color are arrested and convicted at disproportionate rates, excluding individuals from employment based on a criminal record can be unlawful race discrimination under Title VII of the Civil Rights Act of 1964. To be lawful under Title VII, an employment exclusion must be based on proven criminal conduct and must be job-related and consistent with business necessity. In light of the EEOC’s new guidance, employers should tread carefully and consult with legal counsel before excluding someone from employment based on criminal history information, including information found online. In addition to following the above-described guidelines, employers must comply with Minnesota’s “Ban the Box” law, which restricts the timing of employer’s inquiries into an applicant’s criminal past. [See Minn. Stat. §§ 364.021, 364.06, 364.09]. Minnesota law requires employers to wait until a job applicant has been selected for an interview, or a conditional offer of employment has been extended, before inquiring about an applicant’s criminal history or conducting a criminal background check. Employee Privacy Considerations Where an employer provides employees with technology resources or monitors employees through its own technology, employees may argue that they have a right to privacy in the technology or conduct at issue. Privacy issues may also result from the online conduct of employees outside of the employer’s network or technology resources. Because of the public nature of the web and many social media sites, privacy law may, at first blush, seem inapplicable. However, the law regarding online privacy rights is unsettled, and some of the few cases involving the issue have raised the possibility of legal risks for employers, at least when online data comes from a website with privacy restriction settings. While privacy law is still unsettled and evolving, the following is a summary of some of the legal issues that might arise in the employment context.
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