Bill Text: MN HF1602 | 2013-2014 | 88th Legislature | Introduced
Bill Title: Criminal Background Check Act established.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2013-03-18 - Introduction and first reading, referred to Rules and Legislative Administration [HF1602 Detail]
Download: Minnesota-2013-HF1602-Introduced.html
1.2relating to human rights; establishing Criminal Background Check Act;
1.3proposing coding for new law in Minnesota Statutes, chapter 363A.
1.4BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.5 Section 1. [363A.50] CITATION.
1.6Sections 363A.50 to 363A.55 shall be known as the Criminal Background Check Act.
1.7 Sec. 2. [363A.51] PUBLIC POLICY.
1.8 Subdivision 1. No legal obligation to conduct testing. Nothing in this chapter
1.9creates a legal duty for employers to request or require an individual to submit to a
1.10criminal background check as permitted in this section.
1.11 Subd. 2. Communicate possible bar to employment. Nothing in this chapter
1.12prohibits an employer from notifying candidates that law or the employer's policy will
1.13disqualify an individual with a particular criminal history background from employment
1.14in particular positions.
1.15 Subd. 3. Freedom to collectively bargain. Nothing herein shall be construed to limit
1.16parties to a collective bargaining agreement from bargaining and agreeing as to a criminal
1.17background check policy that meets or exceeds, and does not otherwise conflict with, the
1.18minimum standards and requirements for the protection of job applicants and employees.
1.19 Subd. 4. Severability. If any provision of this chapter is held invalid, the invalidity
1.20does not alter the other provisions or applications of the chapter that can be given effect
1.21without the invalid provision or application, and to this end the provisions of this chapter
1.22are severable.
2.1 Sec. 3. [363A.52] PREEMPTION.
2.2 Subdivision 1. Federal law. This chapter is not meant to preempt any federal law
2.3that requires, allows, or provides direction to an employer on how to conduct a criminal
2.4background check prior to hiring or promoting an individual.
2.5 Subd. 2. State law. This chapter is not meant to preempt chapter 364 or any state
2.6law that requires, allows, or provides direction to an employer on how to conduct a
2.7criminal background check prior to hiring or promoting an individual.
2.8 Subd. 3. Practice of law exception. This chapter shall not apply to the practice of
2.9law or judicial branch employment. Nothing in this section shall be construed to preclude
2.10the Supreme Court, in its discretion, from adopting the policies set forth in this chapter.
2.11 Sec. 4. [363A.53] CRIMINAL BACKGROUND CHECK.
2.12 Subdivision 1. Applicable law. Unless there is a federal or state law that preempts
2.13this statute, an employer may not request or require a job applicant to submit to a criminal
2.14background check except as authorized in this section.
2.15 Subd. 2. Employer assessment. An employer may not request or require an
2.16employee or job applicant to submit to a criminal background check unless the employer
2.17validates the criminal conduct ban or exclusion for the position in light of the Uniform
2.18Guidelines on Employee Selection Procedures or conducts an assessment consistent with
2.19the applicable provisions of this section and section 363A.54.
2.20 Subd. 3. Reliability and fairness. An employer who requests or requires a job
2.21applicant to submit to a criminal background check shall use the services of an agency that
2.22is accredited by the National Association of Professional Background Screeners or obtain
2.23information directly from the Minnesota Bureau of Criminal Apprehension.
2.24 Subd. 4. Evidence of rehabilitation. A person who has been convicted of a crime or
2.25crimes shall not be disqualified from employment by an employer if the person can show
2.26competent evidence of sufficient rehabilitation and present fitness to perform the duties of
2.27employment. Sufficient evidence of rehabilitation may be established by the production of:
2.28(1) a copy of the local, state, or federal release order;
2.29(2) evidence showing that at least one year has elapsed since release from any local,
2.30state, or federal correctional institution without subsequent conviction of a crime;
2.31(3) evidence showing compliance with all terms and conditions of probation, parole,
2.32or parole supervision;
2.33(4) nature and seriousness of the crime or crimes;
2.34(5) mitigating circumstances or social conditions surrounding the commission of
2.35the crime or crimes;
3.1(6) the age of the person at the time the crime or crimes were committed;
3.2(7) the length of time elapsed since the crime or crimes were committed; and
3.3(8) all other competent evidence of rehabilitation and present fitness presented,
3.4including, but not limited to, letters of reference by persons who have been in contact with
3.5the applicant since the applicant's release from any local, state, or federal correctional
3.6institution.
3.7 Subd. 5. Available records. The following criminal records shall not be used by an
3.8employer or any of its agents in determining whether to extend an offer of employment to
3.9an individual interviewed:
3.10(1) convictions which have been, pursuant to law, annulled or expunged;
3.11(2) misdemeanor convictions for which no jail sentence can be imposed; and
3.12(3) arrest records.
3.13 Subd. 6. Criminal background check limited to candidates interviewed. An
3.14employer may not require a job applicant to submit to a criminal background check until
3.15the employer has decided to interview the job applicant.
3.16 Subd. 7. Limit withdrawal of job offer, discipline, and discharge. (a) An
3.17employer may not withdraw a job offer, discipline, or discharge an individual based on
3.18information obtained from a criminal background check until the individual has been
3.19provided with an opportunity to respond to the information obtained or the information
3.20has been verified by a second criminal background check.
3.21(b) Nothing in this section limits the ability of the employer to rescind a job offer,
3.22discipline, or discharge an individual upon discovering that the individual has provided
3.23false or misleading information.
3.24(c) Nothing in this section requires an employer to extend a conditional job offer
3.25prior to requesting an individual to submit to a criminal background check.
3.26 Subd. 8. Informing interview candidates of denial of employment. If an
3.27employer, after interviewing a candidate, denies an employment opportunity solely or in
3.28part because of the individual's prior conviction of a crime, the employer shall notify
3.29the individual in writing of the following:
3.30(1) the reasons for the denial of employment;
3.31(2) the process to explain the negative criminal background history information; and
3.32(3) the process to request and pay for a second criminal background check.
3.33 Subd. 9. Refusal by individual. An employer may decline to hire or promote an
3.34individual on the basis of the individual's refusal to submit to a criminal background check
3.35provided that the employer has a legitimate business justification to have candidates
3.36submit to a criminal background check.
4.1 Sec. 5. [363A.54] CRIMINAL BACKGROUND CHECK POLICY.
4.2 Subdivision 1. Contents of policy. An employer's criminal background check
4.3policy must, at a minimum, set forth the following information:
4.4(1) the job positions subject to a criminal background check;
4.5(2) the circumstances under which an interview candidate will be rejected;
4.6(3) the process that will be afforded for an interview candidate to explain a negative
4.7criminal background check;
4.8(4) the process that will be afforded for an interview candidate to request and pay for
4.9a second criminal background check; and
4.10(5) any other appeal procedures available.
4.11 Subd. 2. Notice. An employer shall post notice in an appropriate and conspicuous
4.12location on the employer's premises that the employer has adopted a criminal background
4.13check policy and that copies of the policy are available for inspection during regular
4.14business hours by employees or job applicants.
4.15 Subd. 3. Notice to interview candidates. An employer shall require all individuals
4.16subjected to a criminal background check to sign a form, developed by the employer,
4.17that acknowledges that:
4.18(1) the individual has given permission;
4.19(2) the individual has seen the employer's criminal background check policy;
4.20(3) the individual will be provided with a copy of the report and the opportunity
4.21to explain any negative criminal background history information obtained prior to the
4.22employer using the information;
4.23(4) the employer will forward information obtained from the criminal history
4.24background check to the individual within three working days of receipt of the information
4.25by the employer; and
4.26(5) the individual will be afforded an opportunity to request and pay for a second
4.27criminal background check within three working days.
4.28 Subd. 4. Confirmatory study. If the confirmatory study does not confirm the original
4.29information received from the criminal background check, no adverse personnel action
4.30based on the original information may be taken against the employee or job applicant.
4.31 Subd. 5. Confidentiality. (a) All information obtained by an employer from a
4.32criminal background check is confidential information and may not be disclosed without
4.33the written consent of the employee or job applicant unless the information is used in
4.34an alternative dispute proceeding, administrative hearing, or judicial tribunal and the
4.35information is relevant to the proceeding, hearing, or court proceeding.
5.1(b) None of the information obtained by an employer from a criminal background
5.2check shall constitute personnel record information pursuant to section 181.960,
5.3subdivision 4.
5.4 Subd. 6. Right to review information. An individual has the right to request
5.5and receive from the employer a copy of any information obtained through a criminal
5.6background check.
5.7 Sec. 6. [363A.55] REMEDIES.
5.8 Subdivision 1. Civil right. Violation of the rights established in this chapter shall
5.9constitute a violation of a person's civil rights.
5.10 Subd. 2. Damages. In addition to any other remedies provided by law, an employer
5.11that violates this chapter is liable in a civil action for any damages allowable at law to an
5.12employee or job applicant injured. If a violation is found and damages awarded, the court
5.13may also award reasonable attorney fees if the court finds that the employer knowingly or
5.14recklessly violated this chapter.
5.15 Subd. 3. Equitable relief. A court, in its discretion, may enjoin or grant any other
5.16equitable relief it considers appropriate when it finds that an employer has committed or
5.17proposes to commit an act in violation of this chapter.
5.18 Subd. 4. Retaliation. An employer may not retaliate against an individual for
5.19pursuing their civil rights within this chapter.
1.3proposing coding for new law in Minnesota Statutes, chapter 363A.
1.4BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.5 Section 1. [363A.50] CITATION.
1.6Sections 363A.50 to 363A.55 shall be known as the Criminal Background Check Act.
1.7 Sec. 2. [363A.51] PUBLIC POLICY.
1.8 Subdivision 1. No legal obligation to conduct testing. Nothing in this chapter
1.9creates a legal duty for employers to request or require an individual to submit to a
1.10criminal background check as permitted in this section.
1.11 Subd. 2. Communicate possible bar to employment. Nothing in this chapter
1.12prohibits an employer from notifying candidates that law or the employer's policy will
1.13disqualify an individual with a particular criminal history background from employment
1.14in particular positions.
1.15 Subd. 3. Freedom to collectively bargain. Nothing herein shall be construed to limit
1.16parties to a collective bargaining agreement from bargaining and agreeing as to a criminal
1.17background check policy that meets or exceeds, and does not otherwise conflict with, the
1.18minimum standards and requirements for the protection of job applicants and employees.
1.19 Subd. 4. Severability. If any provision of this chapter is held invalid, the invalidity
1.20does not alter the other provisions or applications of the chapter that can be given effect
1.21without the invalid provision or application, and to this end the provisions of this chapter
1.22are severable.
2.1 Sec. 3. [363A.52] PREEMPTION.
2.2 Subdivision 1. Federal law. This chapter is not meant to preempt any federal law
2.3that requires, allows, or provides direction to an employer on how to conduct a criminal
2.4background check prior to hiring or promoting an individual.
2.5 Subd. 2. State law. This chapter is not meant to preempt chapter 364 or any state
2.6law that requires, allows, or provides direction to an employer on how to conduct a
2.7criminal background check prior to hiring or promoting an individual.
2.8 Subd. 3. Practice of law exception. This chapter shall not apply to the practice of
2.9law or judicial branch employment. Nothing in this section shall be construed to preclude
2.10the Supreme Court, in its discretion, from adopting the policies set forth in this chapter.
2.11 Sec. 4. [363A.53] CRIMINAL BACKGROUND CHECK.
2.12 Subdivision 1. Applicable law. Unless there is a federal or state law that preempts
2.13this statute, an employer may not request or require a job applicant to submit to a criminal
2.14background check except as authorized in this section.
2.15 Subd. 2. Employer assessment. An employer may not request or require an
2.16employee or job applicant to submit to a criminal background check unless the employer
2.17validates the criminal conduct ban or exclusion for the position in light of the Uniform
2.18Guidelines on Employee Selection Procedures or conducts an assessment consistent with
2.19the applicable provisions of this section and section 363A.54.
2.20 Subd. 3. Reliability and fairness. An employer who requests or requires a job
2.21applicant to submit to a criminal background check shall use the services of an agency that
2.22is accredited by the National Association of Professional Background Screeners or obtain
2.23information directly from the Minnesota Bureau of Criminal Apprehension.
2.24 Subd. 4. Evidence of rehabilitation. A person who has been convicted of a crime or
2.25crimes shall not be disqualified from employment by an employer if the person can show
2.26competent evidence of sufficient rehabilitation and present fitness to perform the duties of
2.27employment. Sufficient evidence of rehabilitation may be established by the production of:
2.28(1) a copy of the local, state, or federal release order;
2.29(2) evidence showing that at least one year has elapsed since release from any local,
2.30state, or federal correctional institution without subsequent conviction of a crime;
2.31(3) evidence showing compliance with all terms and conditions of probation, parole,
2.32or parole supervision;
2.33(4) nature and seriousness of the crime or crimes;
2.34(5) mitigating circumstances or social conditions surrounding the commission of
2.35the crime or crimes;
3.1(6) the age of the person at the time the crime or crimes were committed;
3.2(7) the length of time elapsed since the crime or crimes were committed; and
3.3(8) all other competent evidence of rehabilitation and present fitness presented,
3.4including, but not limited to, letters of reference by persons who have been in contact with
3.5the applicant since the applicant's release from any local, state, or federal correctional
3.6institution.
3.7 Subd. 5. Available records. The following criminal records shall not be used by an
3.8employer or any of its agents in determining whether to extend an offer of employment to
3.9an individual interviewed:
3.10(1) convictions which have been, pursuant to law, annulled or expunged;
3.11(2) misdemeanor convictions for which no jail sentence can be imposed; and
3.12(3) arrest records.
3.13 Subd. 6. Criminal background check limited to candidates interviewed. An
3.14employer may not require a job applicant to submit to a criminal background check until
3.15the employer has decided to interview the job applicant.
3.16 Subd. 7. Limit withdrawal of job offer, discipline, and discharge. (a) An
3.17employer may not withdraw a job offer, discipline, or discharge an individual based on
3.18information obtained from a criminal background check until the individual has been
3.19provided with an opportunity to respond to the information obtained or the information
3.20has been verified by a second criminal background check.
3.21(b) Nothing in this section limits the ability of the employer to rescind a job offer,
3.22discipline, or discharge an individual upon discovering that the individual has provided
3.23false or misleading information.
3.24(c) Nothing in this section requires an employer to extend a conditional job offer
3.25prior to requesting an individual to submit to a criminal background check.
3.26 Subd. 8. Informing interview candidates of denial of employment. If an
3.27employer, after interviewing a candidate, denies an employment opportunity solely or in
3.28part because of the individual's prior conviction of a crime, the employer shall notify
3.29the individual in writing of the following:
3.30(1) the reasons for the denial of employment;
3.31(2) the process to explain the negative criminal background history information; and
3.32(3) the process to request and pay for a second criminal background check.
3.33 Subd. 9. Refusal by individual. An employer may decline to hire or promote an
3.34individual on the basis of the individual's refusal to submit to a criminal background check
3.35provided that the employer has a legitimate business justification to have candidates
3.36submit to a criminal background check.
4.1 Sec. 5. [363A.54] CRIMINAL BACKGROUND CHECK POLICY.
4.2 Subdivision 1. Contents of policy. An employer's criminal background check
4.3policy must, at a minimum, set forth the following information:
4.4(1) the job positions subject to a criminal background check;
4.5(2) the circumstances under which an interview candidate will be rejected;
4.6(3) the process that will be afforded for an interview candidate to explain a negative
4.7criminal background check;
4.8(4) the process that will be afforded for an interview candidate to request and pay for
4.9a second criminal background check; and
4.10(5) any other appeal procedures available.
4.11 Subd. 2. Notice. An employer shall post notice in an appropriate and conspicuous
4.12location on the employer's premises that the employer has adopted a criminal background
4.13check policy and that copies of the policy are available for inspection during regular
4.14business hours by employees or job applicants.
4.15 Subd. 3. Notice to interview candidates. An employer shall require all individuals
4.16subjected to a criminal background check to sign a form, developed by the employer,
4.17that acknowledges that:
4.18(1) the individual has given permission;
4.19(2) the individual has seen the employer's criminal background check policy;
4.20(3) the individual will be provided with a copy of the report and the opportunity
4.21to explain any negative criminal background history information obtained prior to the
4.22employer using the information;
4.23(4) the employer will forward information obtained from the criminal history
4.24background check to the individual within three working days of receipt of the information
4.25by the employer; and
4.26(5) the individual will be afforded an opportunity to request and pay for a second
4.27criminal background check within three working days.
4.28 Subd. 4. Confirmatory study. If the confirmatory study does not confirm the original
4.29information received from the criminal background check, no adverse personnel action
4.30based on the original information may be taken against the employee or job applicant.
4.31 Subd. 5. Confidentiality. (a) All information obtained by an employer from a
4.32criminal background check is confidential information and may not be disclosed without
4.33the written consent of the employee or job applicant unless the information is used in
4.34an alternative dispute proceeding, administrative hearing, or judicial tribunal and the
4.35information is relevant to the proceeding, hearing, or court proceeding.
5.1(b) None of the information obtained by an employer from a criminal background
5.2check shall constitute personnel record information pursuant to section 181.960,
5.3subdivision 4.
5.4 Subd. 6. Right to review information. An individual has the right to request
5.5and receive from the employer a copy of any information obtained through a criminal
5.6background check.
5.7 Sec. 6. [363A.55] REMEDIES.
5.8 Subdivision 1. Civil right. Violation of the rights established in this chapter shall
5.9constitute a violation of a person's civil rights.
5.10 Subd. 2. Damages. In addition to any other remedies provided by law, an employer
5.11that violates this chapter is liable in a civil action for any damages allowable at law to an
5.12employee or job applicant injured. If a violation is found and damages awarded, the court
5.13may also award reasonable attorney fees if the court finds that the employer knowingly or
5.14recklessly violated this chapter.
5.15 Subd. 3. Equitable relief. A court, in its discretion, may enjoin or grant any other
5.16equitable relief it considers appropriate when it finds that an employer has committed or
5.17proposes to commit an act in violation of this chapter.
5.18 Subd. 4. Retaliation. An employer may not retaliate against an individual for
5.19pursuing their civil rights within this chapter.
