By Les Rosen, Employment Screening Resources
From the mailbox: Does Minnesota have any laws that prevent an employer from obtaining or using criminal records?
Answer: A number of states have very specific state rules about obtaining and using criminal records. Employment Screening Resources (ESR) maintains it’s own proprietary 50 state guide that is available to ESR clients.
Minnesota passed a law in 2009 that gave empowers some protection when hiring someone with a criminal record. Essentially, the law provides that information about the criminal history of an employee or past employee cannot be used against an employer in a civil action if:
1) the duties of the position of employment did not expose others to a greater degree of risk than that created by the employee or former employee interacting with the public outside of the duties of the position or that might be created by being employed in general;
(2) before the occurrence of the act giving rise to the civil action, a court order sealed any record of the criminal case or the employee or former employee received a pardon; or
(3) the record is of an arrest or charge that did not result in a criminal conviction.
If an employer, for example, was sued for negligent hiring, this statue potentially affords some additional protection if the terms of the law are satisfied. Such a statue can encourage employers to hire applicants who otherwise may have had difficulty obtaining employment.
The Minnesota Department of Human Rights has also given guidance on hiring and the use of criminal records.Â Minnesota is among a number of states with Human Rights agencies that have set forth guidelines for legal and non-discriminatory hiring practices.Â According to the agency:
While not prohibiting the inquiry, courts have held that barring job applicants because of an arrest and/or criminal conviction record may have a statistically significant, adverse impact on members of racial or ethnic minority groups. An employer’s hiring policy regarding criminal convictions may be held to be discriminatory when, absent a bona fide occupational qualification, a minority-group member’s criminal conviction record is an absolute bar to employment, provided that a statistically significant adverse impact is shown within the protected class.
Within this context, the recency and job-relatedness of any conviction must be considered by the employer before making an adverse hiring decision relating to criminal record. It is generally advisable that employers inform job applicants, at the time of application, that these mitigating factors will be considered; an employer’s failure to do so may have a chilling effect on job applicants pursuing a job with that employer, which may prove to be discriminatory.
Another Minnesota rules deals with minor offense for which jail time cannot be imposed, or instances where an arrest did not result in a conviction. According to Minnesota law:
The following criminal records shall not be used, distributed, or disseminated by the state of Minnesota, its agents or political subdivisions in connection with any application for public employment nor in connection with an application for a license:
(1) Records of arrest not followed by a valid conviction.
(2) Convictions which have been, pursuant to law, annulled or expunged.
(3) Misdemeanor convictions for which no jail sentence can be imposed.
Nothing in this blog is intended as legal advice and is not intended be a complete discussion of all laws that may apply. Employers should contact their attorney for specific advice on these laws may apply to them. However, it does underscore once again that background screening and hiring is a highly regulated area that requires the assistance of professionals, and not merely data vending companies. Because ESR receives so many questions about state laws, hiring and background checks, ESR will blogging on certain aspects of all 50 states during the rest of 2010.