Date: October 2015
When using criminal histories and criminal background checks in hiring, public employers need to keep the Criminal Offenders Rehabilitation Act, Minnesota Statutes Chapter 364, in mind. Initially enacted in 1974, the Act limits a public employer’s ability to refuse employment on the basis of an applicant’s criminal history.
Minnesota Statutes Section 364.021 prohibits public employers from inquiring into or considering or requiring disclosure of the criminal record or history of a job applicant until the applicant is selected for an interview by the employer. If there is no interview, the statute prohibits considering or requiring disclosure before a conditional offer of employment is made. However, there are exceptions for positions for which employers have a statutory duty to consider criminal history or conduct a criminal background check when hiring, such as law enforcement. Overall, the statute has the practical effect of precluding employers from asking about criminal history on an application for most positions.
Because of this restriction, public employers should ensure that their employment application forms are in compliance with this law. Minnesota Statutes, Section 364.021 allows public employers to notify applicants that the law or the employer’s policy, if existing, will disqualify an individual with a particular criminal history background from employment in particular positions. It is to the employer’s and applicant’s advantage to have such a notification placed in the application materials so as to save time and effort for both sides.
If a public employer is hiring for a position that mandates a criminal background check, the employer may also want to put this information in the job advertisement. The ad could include language indicating, for example, “criminal background checks will be completed on all interviewees.”
Because an employer may only inquire about an applicant’s criminal history once he or she is selected for an interview, employers may want to include a questionnaire on the applicant’s criminal background in a letter advising of interview date and time or to request interviewees to arrive early for the interview to complete a questionnaire. The questionnaire may include the following questions or topics:
- whether the applicant has ever been convicted of a crime.
- name under which the person was convicted, date and jurisdiction.
- time, nature and number of convictions.
- facts surrounding each offense.
- employment history before and after the conviction, if not already provided on the application.
Once information on the applicant or interviewee’s criminal history is received, public employers must exercise caution in how they use the information in their hiring decision. The Act prohibits public employers from disqualifying applicants from consideration for a position on the basis of a past conviction unless the crime(s) is directly related to the position for which the applicant is applying (Minn. Stat. § 364.03, subd. 1).
The Legislature’s intent behind this restriction is to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the resumption of responsibilities of citizenship (Minn. Stat. § 364.01). This prohibition does not apply to all positions, however, so it is advisable for members to check with their county attorney or employment law attorney to determine whether the position being filled is exempt from this Act (see Minn. Stat. § 364.09).
For those positions covered by the Act, when determining whether a conviction directly relates to the position sought, the public employer must consider:
- the nature and seriousness of the crime(s) for which the individual was convicted.
- the relationship of the crime(s) to the purposes of regulating the position of public employment sought.
- the relationship of the crime(s) to the ability, capacity and fitness required to perform the duties and discharge the responsibilities of the position of employment (Minn. Stat. § 364.03, subd. 2).
Consideration is limited to convictions of felony, gross misdemeanor and misdemeanor crimes for which a jail sentence can be imposed (Minn. Stat. § 364.02, subd. 5). The Act prohibits public employers from considering arrests not followed by a valid conviction, annulled or expunged convictions, and misdemeanor convictions for which no jail sentence can be imposed (Minn. Stat. § 364.04).
Additionally, public employers should be aware of the federal Equal Employment Opportunity Commission’s (EEOC) Guidelines that state that a criminal conviction may not be an absolute bar to employment unless the employment policy is justified by a business necessity. These guidelines can be found on the EEOC’s website at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. Employers should consider how any conviction(s) would affect the applicant’s ability to perform the duties of the job.
The Criminal Offenders Rehabilitation Act also requires public employers to consider evidence of rehabilitation prior to denying an individual employment on the basis of criminal history (Minn. Stat. § 364.03, subd. 3). Under the Act, a public employer cannot disqualify the individual from employment if the individual can show competent evidence of sufficient rehabilitation and present fitness to perform the duties of the public employment sought.
Sufficient evidence of rehabilitation may be established by:
- the production of the person’s most recent certified copy of a United States Department of Defense form DD-214 showing the person’s honorable discharge, or separation under honorable conditions, from the United States armed forces for military service rendered following conviction for any crime that would otherwise disqualify the person from the public employment sought or the occupation for which the license is sought; or
- a copy of the local, state or federal release order; and evidence showing that at least one year has elapsed since release from any local, state or federal correctional institution without subsequent conviction of a crime; and evidence showing compliance with all terms and conditions of probation or parole; or
- a copy of the relevant Department of Corrections discharge order or other documents showing completion of probation or parole supervision.
A certified copy of a person’s United States Department of Defense form DD-214 showing the person’s honorable discharge or separation under honorable conditions from the United States armed forces ceases to qualify as competent evidence of sufficient rehabilitation for purposes of this section upon the person’s conviction for any gross misdemeanor or felony committed by the person subsequent to the effective date of that honorable discharge or separation from military service.
In addition to the above evidence, the public employer must consider any evidence presented by the applicant regarding:
- the nature and seriousness of the crime(s) for which convicted;
- all circumstances relative to the crime or crimes, including mitigating circumstances or social conditions surrounding the commission of the crime(s);
- the age of the person at the time the crime(s) was committed;
- the length of time elapsed since the crime(s) was committed; and
- all other competent evidence of rehabilitation and present fitness presented, including but not limited to letters of reference from persons who have been in contact with the applicant since his or her release from any correctional institution.
Finally, Section 364.05 of the Act requires public employers who reject an applicant solely or in part because of the applicant’s criminal history to follow specific written notification requirements. In particular, the employer must inform the rejected applicant of:
- the grounds and reasons for the disqualification;
- the applicable complaint and grievance procedure as set forth in statute (i.e., the Minnesota Administrative Procedures Act, Minn. Stat. Chpt. 14);
- the earliest date the person may reapply for a position of public employment; and
- that all competent evidence of rehabilitation presented will be considered upon reapplication.
A violation of the rights established by Minnesota Statutes Chapter 364 by a public employer may constitute a violation of the applicant’s civil rights (Minn. Stat. § 364.10).
MCIT recommends consulting with legal counsel for specific questions regarding the language used on employment applications or using criminal history in hiring decisions.
Sample Application Language*
The public entity will request information regarding criminal history in the event that you become a finalist for the position for which you are applying. For certain positions, criminal background information will be requested during the application stage. Further, the entity may conduct a criminal background check on individuals upon making a contingent job offer. Please refer to the job description for this position to determine if such a check will be conducted. If the job description states that a criminal background check will be conducted, no offer of employment shall become final until receipt of the results of the criminal background check from the Bureau of Criminal Apprehension, the content of which is acceptable to the entity, and formal approval by the appointing authority.