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Employers that are either located in Minnesota or hiring Minnesota residents must abide by the Federal FCRA, and applicable Minnesota state employment laws.
This page was created to provide a simple explanation of what an end-user of a background screening report (also known as consumer report) can use in order to be in compliance with Minnesota state laws. This page also contains steps an end-user must take to stay in compliance with Minnesota state laws.
Please keep in mind that the EEOC must always be taken into consideration when a hiring decision is to be made. The EEOC has provided guidance on how employers can use criminal records during the hiring process. This regulation was issued on April 25, 2012. The EEOC requires employers to individually review each applicant or employee that may be disqualified due to a criminal record. This also follows the regulations set forth by the Americans with Disabilities Act (ADA). Additionally, the EEOC wants to undertake an adverse action process similar to that of the FCRA. They want to add a pre-adverse action process of their own. Although employers already have an adverse action process that is specific to information contained in consumer reports, the EEOC's adverse action process may be different.
The information that is provided on this page does not discuss requirements under the EEOC nor does it explain how to use criminal records that fall under the regulation of the EEOC. It is suggested that compliance with the EEOC be discussed with legal counsel.
For more detailed information on Minnesota state laws, please consult your legal counsel.
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Employers may not inquire into an applicant’s criminal history during the initial stage of the employment process. Questions regarding criminal history may not be on the employment application form. Inquiries into criminal history can only be made after the candidate has been selected for an interview, or if there is no interview, when the candidate has received a conditional offer of employment. This standard applies to ALL employers in Minnesota.
(a) A public or private employer may not inquire into or consider or require disclosure of the criminal record or criminal history of an applicant for employment until the applicant has been selected for an interview by the employer or, if there is not an interview, before a conditional offer of employment is made to the applicant.
(b) This section does not apply to the Department of Corrections or to employers who have a statutory duty to conduct a criminal history background check or otherwise take into consideration a potential employee’s criminal history during the hiring process.
(c) This section does not prohibit an employer from notifying applicants that law or the employer’s policy will disqualify an individual with a particular criminal history background from employment in particular positions.
Employers may not use an applicant’s criminal history information when considering a hiring decision in the following situations; (1) the record did not result in a conviction, (2) the record has been annulled or expunged, and (3) the record is a misdemeanor conviction in which no confinement was sentenced.
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.
Employers must notify an applicant of the source of criminal history information when the employer chooses to obtain the applicant’s criminal history from Minnesota’s Bureau of Criminal Apprehension. The employer must notify the applicant that the criminal history will be pulled from Minnesota’s Bureau of Criminal Apprehension.
Subdivision 1.Criminal history data. (a) Definition. For purposes of this subdivision, “criminal history data” means all data maintained in criminal history records compiled by the Bureau of Criminal Apprehension, including, but not limited to fingerprints, photographs, identification data, arrest data, prosecution data, criminal court data, custody and supervision data.
(b) Classification. Criminal history data maintained by agencies, political subdivisions and statewide systems are classified as private, pursuant to section 13.02, subdivision 12, except that data created, collected, or maintained by the Bureau of Criminal Apprehension that identify an individual who was convicted of a crime, the offense of which the individual was convicted, associated court disposition and sentence information, controlling agency, and confinement information are public data for 15 years following the discharge of the sentence imposed for the offense. If an individual’s name or other identifying information is erroneously associated with a criminal history and a determination is made through a fingerprint verification that the individual is not the subject of the criminal history, the name or other identifying information must be redacted from the public criminal history data. The name and other identifying information must be retained in the criminal history and are classified as private data.
The Bureau of Criminal Apprehension shall provide to the public at the central office of the bureau the ability to inspect in person, at no charge, through a computer monitor the criminal conviction data classified as public under this subdivision.
(c) Limitation. Nothing in paragraph (a) or (b) shall limit public access to data made public by section 13.82.
Subd. 2.Firearms data. All data pertaining to the purchase or transfer of firearms and applications for permits to carry firearms which are collected by government entities pursuant to sections 624.712 to 624.719 are private, pursuant to section 13.02, subdivision 12.
Subd. 3.Internet access. (a) The Bureau of Criminal Apprehension shall establish and maintain an Internet Web site containing public criminal history data by July 1, 2004.
(b) Notwithstanding section 13.03, subdivision 3, paragraph (a), the bureau may charge a fee for Internet access to public criminal history data provided through August 1, 2005. The fee may not exceed $5 per inquiry or the amount needed to recoup the actual cost of implementing and providing Internet access, whichever is less. Fees collected must be deposited in the general fund as a nondedicated receipt.
(c) The Web site must include a notice to the subject of data of the right to contest the accuracy or completeness of data, as provided under section 13.04, subdivision 4, and provide a telephone number and address that the subject may contact for further information on this process.
(d) The Web site must include the effective date of data that is posted.
(e) The Web site must include a description of the types of criminal history data not available on the site, including arrest data, juvenile data, criminal history data from other states, federal data, data on convictions where 15 years have elapsed since discharge of the sentence, and other data that are not accessible to the public.
(f) A person who intends to access the Web site to obtain information regarding an applicant for employment, housing, or credit must disclose to the applicant the intention to do so. The Web site must include a notice that a person obtaining such access must notify the applicant when a background check using this Web site has been conducted.
(g) This subdivision does not create a civil cause of action on behalf of the data subject.
Subd. 4.Name and event index service; data classification. (a) For purposes of this section, “name and event index service” means the data held by the Bureau of Criminal Apprehension that link data about an individual that are stored in one or more databases maintained in criminal justice agencies, as defined in section 299C.46, subdivision 2, and in the judiciary.
(b) Data collected, created, or maintained by the name and event index service are classified as private data, pursuant to section 13.02, subdivision 12, and become confidential data, pursuant to section 13.02, subdivision 3, when the data links private or public data about a specific individual to any confidential data about that individual. The data in the name and event index service revert to the private data classification when no confidential data about a specific individual are maintained in the databases. The classification of data in the name and event index service does not change the classification of the data held in the databases linked by the service.
Subd. 5.Parole and probation authority access to records. Parole and county probation authorities may access data identified in subdivision 2 on an applicant or permit holder who is subject to the supervision of that parole or county probation authority.
The Fair Credit Reporting Act (FCRA) is a set of federal guidelines that helps regulate hiring practices. The FCRA was created to ensure privacy, accuracy, and fairness of consumer information. The FCRA accomplishes this by having a set standard for collecting, disseminating, and using consumer information.
Employers obtaining consumer reports for background screening purposes must follow specific procedures. For example, employers must disclose to the candidate what the background screening is, what information it includes, and how they intend to use it. They must obtain the written consent of the candidate before obtaining a background screening. They may not misuse the information contained in the background screening. There are also strict procedures an employer must follow should they decide not to hire a potential candidate based on the information in the background screening.
The purpose of the FCRA is to help protect employers, employees, and potential job candidates.
This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.
All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.
Minnesota Statutes §364.021: Public and Private Employment; Consideration of Criminal Records.
Just v. Target Corp.
Plaintiff claims that Target violated the FCRA disclosure requirements by not providing a document consisting solely of the disclosure to its applicants. Plaintiff claims this document also included a contract for employment; language requiring dedication, trust and honesty from all employees; an at-will employee notice; and information on how to request a copy of their consumer report.
Dismissed. Court found Target did not wilfully violate the FCRA while trying to pursue compliance.
Employers must ensure they follow strict procedures complying with the FCRA’s requirements for disclosure and authorization.