Minnesota Statute 364 Amendment FAQ
Do I have to hire a hire an applicant with a criminal record?
No, now hiring decisions remain with the employer. The law does not preclude an employer from requesting or considering an applicant's criminal history pursuant to Minnesota Statute 354.021 or other applicable law.
The new criminal background law, however, does require employers to wait until the applicant has been selected for an interview or before a conditional job offer has been extended before inquiring about the applicant's criminal history.
What if I'm obligated to conduct background checks, how does this new law impact me?
If you are obligated to screen employees' criminal records due to working with vulnerable populations or some other legal requirement you are still allowed to obtain necessary criminal background information. The change in statute does not preclude an employer from asking about an applicant's criminal history, it merely changes the timing of when that request can be made, including for occupations with legal requirements about criminal records.
Why is it important to wait until the applicant has been selected for an interview or conditional offer of employment?
Slightly over 92 million people nationally have a criminal record and the vast majority of those incidents are for non-violent crimes and arrests. National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. By waiting until after an interview or conditional job offer, employers offer the applicant an opportunity to compete for the position and explain any potential criminal background record and mitigate disparate impact based on race and national origin in the applicant pool.
Do I have to remove the question about a criminal background on the application for employment or online employment program/web site?
After Jan. 1, 2014, an organization that asks the question regarding an applicant's criminal background and uses the information to determine which applicants to interview would be in violation of the criminal background check law.
Can I notify potential applicants that a position either requires a background check by law or in the organization's policy?
The law allows an employer to notify applicants that law or the employer's policy will disqualify an individual with a particular criminal history background from employment in particular positions.
When does the new law go into effect?
Employers will need to comply with the Minnesota criminal background law by Jan. 1, 2014.
Does a small business need to comply with this law?
There is no size requirement attached to the criminal background law. All Minnesota employers are covered under the new criminal background law.
Does this law eliminate laws that require individuals with criminal background to be excluded for a position?
No. If an employer is prohibited, under federal or state law, from hiring an individual who has been previously convicted of a crime the employer remains obligated to continue to follow federal or state law.
Are there fines for violations?
Private employers found in violation of the criminal background law could face fines depending on the size of the company starting on January 1, 2015. During the first year that the law is in force the commissioner will provide a written warning to any employers found in violation before any fines are levied.
The Minnesota Department of Human Rights (MDHR) is charged with enforcing this law. However, MDHR's primary role will be to provide education to employers regarding best practices. This commitment is reflected in the first year period that provides for notification and education before any penalties are applied. The spirit of this law is to give job applicants with a criminal record a second chance at employment.
What are the fines for a violation?
If the Human Rights Commissioner finds that a violation has occurred, the commissioner may impose penalties.
For violations that occur in 2014, the penalties are as follows:
- For the first violation, the commissioner shall issue a written warning to the employer that includes a notice regarding the penalties for subsequent violations.
- If a first violation is not remedied within 30 days of the issuance of a warning, the commissioner may impose up to a $500 fine, not to exceed $500 in a calendar month.
For violations that occur in 2015, the penalties are as follows:
- For employers that employ 10 or fewer persons at a site, the penalty is up to $100 for each violation, not to exceed $100 in a calendar month.
- For employers that employ 11 to 20 persons at a site, the penalty is up to $500 for each violation, not to exceed $500 in a calendar month.
- For employers that employ more than 20 persons at one or more sites, the penalty is up to $500 for each violation, not to exceed $2,000 in a calendar month.
Where can I find information on how to properly conduct a criminal background check?
The Equal Employment Opportunity Commission published guidance for employers on conducting criminal background checks on April 25, 2012. Employers should review the guidance to ensure compliance with federal and state anti-discrimination laws.