EMMPLOYMENT BACKGROUND CHECKS
Minnesota Employment Background Checks
All employment background checks services including employment driving records, pre-employment drug screening, employment criminal record background checks and employment verifications are available in Minnesota
Our criminal records Smart Search Plus® has become the industry standard for a quality FCRA Compliant criminal records background check.
It includes an unlimited check of the Federal criminal records repositories in the states where the applicant has lived for the past 7 years.
It also includes a check of any needed state and county criminal records checks as well as a social security number address history trace, a multi-state criminal records database search and a check of of the sex offender registry in all 50 states.
It is the criminal records background check now chosen by most of our clients. For a brief overview of all of our employment screening services, please Click Here
Arrest:
Arrest records in Minnesota are public records in the originating agency. Minn. Stat. § 13.82. However, the Department of Human Rights warns employers that inquiries about arrests may violate the Minnesota Human Rights Law because they may have an adverse impact on a protected group.
Conviction:
The Department of Human Rights has indicated that inquiries about prior convictions do not violate Minnesota law.
The employer must, however, consider how recent the convictions are and whether they are closely related to the position.
The Department of Human Rights prohibits employers from using prior convictions as an absolute bar to employment absent a bona fide occupational qualification.
National Employment Screening provides professional pre employment screening services to Minnesota employers to help you protect your employees and clients from the costly effects of making a “Bad Hire.
We provide employment screening services for hospitals, nursing homes, franchised auto dealers, staffing companies, employee leasing companies, PEO’s, trucking and transportation companies, banks, high tech companies, insurance companies and all other employers in all Minnesota cities.
We provide employment screening services for employers in all Minnesota cities including St. Paul, Minneapolis, International Falls, Duluth and other Minnesota cities.
Minnesota employment screening law:
Giving Employment References in Minnesota
Apparently, Minnesota employment screening law does not provide specific protection to employers as it relates to supplying references concerning past employment.
It would seem that previous employers may provide any non-confidential information about a previous employee, so long as it’s true and isn’t provided to maliciously harm the employee.
An employer who provides false information that disparages the employee may be liable for defamation.
Lacking specific protection by state law, In order to avoid potential liability, many employers often refuse to comment on a past employee’s job performance and confirm only minimal information such as dates of hire and separation, plus wage or salary information.
This practice, however, leaves employers between the proverbial “Rock and a Hard Place” as they may find themselves the target of a lawsuit from a subsequent employer for failing to disclose a potentially dangerous employee.
Minnesota employment screening law:
Minnesota law also requires that employers may not hold against the applicant any misdemeanor conviction for which a jail sentence cannot be imposed.
Minnesota employment screening law:
Additional Minnesota Reporting Requirements (Enacted 1993)
M.S. §13C.02
Employers must provide a check box on the FCRA disclosure that the applicant may return to the employer to receive a copy of the consumer report.
The employer is responsible for notifying the consumer reporting agency of the consumer’s request and the report must be sent to the consumer by the CRA within 24 hours of providing it to the employer.
The report must be accompanied by the statement of the consumer’s right to dispute and correct any errors.
Minnesota employment screening law:
Employers are restricted from asking applicants about any arrest not followed by a valid conviction, convictions that have been annulled or expunged, and misdemeanor convictions for which no jail sentence can be imposed.
Employers who deny an applicant a position, or deny an individual a license, solely or in part because of that person’s prior conviction, must notify the individual in writing of the grounds for the denial and the earliest date for re-application.
Reference: “Pre-Employment Inquiries Generally Prohibited by the Minnesota Human Rights Act”
Please note that Federal employment screening law mandates background checks for employees who are engaged in particular industries.
The Office of Inspector General of the Department of Health and Human Services maintains a list of individuals who are excluded from participation in any of its federally-funded healthcare programs.
Exclusions are due to convictions for program-related fraud and patient abuse, licensing board actions and default on health education assistance loans.
Therefore, employers in affected industries should check the OIG Exclusion list before hiring employees who might work in such programs.
The FACIS® program is also very important when screening medical personnel. Click Here for more information on FACIS®.
Prohibited Pre-Employment Practices
The Minnesota Human Rights Act, and Minnesota Statutes,, subd. 4(a), provides it is an illegal, discriminatory employment practice for an employer — before a job applicant is hired — to require or request the person to furnish information that pertains to the following: race, religion, national origin, public assistance, sex, color, marital status, sexual orientation, familial status, age, creed, or disability.
This prohibition includes pre-employment information sought or obtained by any of these means:
Application form
Job interview
Physical exam/health history
Third-party sources, e.g., prior employer, employment agency or background check
Exceptions
Limited, narrow exceptions exist for a Bona-Fide Occupational Qualification (BFOQ), affirmative-action tracking and selection information (which must be maintained separately from the employment application), national security or pursuant to state or federal rule, regulation or law.
Indirect Inquiries
The Human Rights Act also prohibits indirect inquiries and considerations related to race, sex, age, color, creed, public assistance status, sexual orientation, familial status, national origin, disability, religion and marital status.
Such inquiries, in and of themselves, may lead to violation of the Act and may be the basis for a Commissioner’s charge. Their use may also lead a job applicant to file a charge or a private lawsuit, in the belief that the employer’s other employment practices, including the ultimate failure to hire that applicant, are discriminatory.
Pre-employment requests for information regarding the identity of relatives must explicitly exclude identification of marital status.
General questions about an applicant’s relatives working for the employer are either likely to elicit prohibited information (when the space allowed for indicating “yes” or “no” is so large that it invites a more detailed response, possibly identifying a spouse) or useless (the limited value of a “yes” response, if you do not know, and should not speculate-in the case of spouses identity of the related employee).
Pre-Employment Inquiries and Citizenship
Asking whether an applicant is a U.S. Citizen during a job interview is generally prohibited.
The federal Immigration Reform and Control Act of 12986 (IRCA) makes it illegal for employers to discriminate based on a person’s citizenship or immigration status during hiring, firing, recruitment or referral for a fee.
Physical Examinations
To determine the person’s capability to perform available employment, an employer may legally request or require a physical examination, which may include a medical history, provided all the following elements are met:
An offer of employment has been made, on the condition that the person meets the physical or mental requirements of the job (except: a law enforcement agency filling a peace officer position may require a psychological examination prior to a job offer);
The examination tests only for essential, job-related abilities;
The examination, except for Workers’ Compensation Act-related exams, is required of all persons conditionally offered the same position, regardless of disability; and
The information obtained is collected and maintained separately and is treated as a confidential medical record, subject to limited access, for purposes enumerated at §363A.20, subd. 8.
Any person who is illegally required to provide health-related or other prohibited information is an aggrieved party. §363A.08, subd. 4(b)
Non-Medical Tests
Employers may administer non-medical, pre-employment tests to job applicants, without first making a conditional offer of employment, provided all the following elements are met:
The tests are required of all applicants for the same position;
The tests measure only essential, job-related abilities; and
The tests accurately measure aptitude or achievement, rather than reflecting an applicant’s impaired sensory, manual, or speaking skills, except when those skills are the factors the tests are designed to measure.
Timing an applicant’s performance of a job-related task would be a non-medical test, however, measuring an applicant’s physiological state — such as blood pressure or heart rate — following a performance test, would likely constitute a medical or physical examination.
Disqualifying Disabilities
The Minnesota Supreme Court has held that each allegedly disqualifying disability must be examined on an individual basis, with regard to the degree of the disability, current medical condition of the employee and the nature of the position sought.
To be considered are both the possible severity of the consequences if an accident occurred, and the likelihood of an accident occurring, and the employer must rely upon competent medical advice.
An employer may claim that having a specific, disability-related characteristic, such as history of heart disease or seizure disorder, absolutely disqualifies job applicants with that characteristic.
When relying upon this “bona fide occupational qualification” exception, the burden is on the employer to present a factual basis to establish that all or substantially all persons so affected would be unable to safely and efficiently perform the required job duties.
Health Care Records & Medical Information
If any health care records or medical information adversely affect any hiring, firing, or promotional decision concerning an applicant or employee, the employer must notify the affected party within ten days of the final decision.
Information on an applicant or employee’s medical history or condition must be collected and maintained on separate forms and kept in separate medical files, and is to be treated as confidential materials, with access limited to those persons needing the information for purposes relating to necessary restrictions and accommodations; first aid safety, if disability might require emergency treatment; government inquiries; and release mandated by law; provided that the results of the examination are used only in accordance with the Human Rights Act.
Employment and applicant records must be retained for at least one year after the records are made.
Use of Information from Overbroad Medical Inquiries
The Minnesota Supreme Court, in Huisenqa v. Opus Corp., et al, 494 N.W. 2d 469 (Minn. 1992), recognized that employer inquiries, which are not tailored to the requirement of the job in question, are not permitted under the Minnesota Human Rights Act.
(MHRA) The Huisenga case was brought under the state’s workers’ compensation statutes, and the Court’s decision centered around its interpretation of the MHRA. The court, in its decision, stated:
Today, we address the question of whether an employer may avoid paying benefits when a job applicant or employee makes a false representation regarding health or physical condition in a response to a question posed by the employer which requests health and medical information unrelated to the tasks of the job and it thus is prohibited by the Minnesota Human Rights Act…
Lund Martins’ inquires regarding prior worker’s compensation claims of an employee or applicant also stray from the mark.
We do not see how asking if an employee or applicant has ever received workers’ compensation benefits can survive the requirements of the MHRA.
A person could have been previously injured in the workplace in a fashion completely irrelevant to the requirements for the job in question.
Yet, the questionnaire clearly asks an applicant or employee to divulge information regarding not only the claims, which go to the essence of the job, but also those which do not.
Probing into the health history and disabilities of an applicant or employee in this fashion is not permitted under the MHRA unless the inquires are tailored to the requirements of the job in question.
The general nature of the question indicates that no such tailoring effort was made here…
The MHRA could not be more clear in stating that questions regarding health and disability may only be asked if they test essential job-related abilities. These did not. Furthermore, we believe that overreaching invites deceit…
When making inquiries of job applicants or employees, employers may do so only in methods which comply with the provisions of the MHRA.
If they stray from the mandates and prohibitions of the MHRA, their reliance on the resulting information is from a poisoned tree
…
The Huisenqa decision holds that discrimination will be found to have occurred when improperly requested information, either obtained by or withheld from an employer, becomes a factor in a subsequently made, adverse employment decision concerning the job applicant or employee.
Such discrimination is distinguished from the violation of making the improper request, itself.
Marital Status
In some instances, particularly in filling supervisory or confidential positions, an employer may be able to justify not hiring an individual whose spouse is already working for that employer.
These are narrow exceptions, however, and an employer needlessly exposes itself to discrimination charges or litigation when such information is routinely requested, without regard for the position being filled or the stage of the hiring process at which the information is sought.
Although it is generally advisable that an employer drop the question, each employer may anticipate the potential value and legal consequences, respectively, of its use.
Employers cite difficulties in verifying background information, without requesting women to furnish a birth name.
A “maiden” name inquiry singles out women (men, too, may legally change their names); it also may reveal a woman’s marital status. If it is necessary to pursue this information at such an early stage in the hiring process (which, in practice, seems unlikely), all applicants may be requested to indicate any other name/s by which former employer/s, schools or branch of military service, named on the application, would identify the applicant.
Arrest and Criminal Records
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.
“Ban the Box”
In 2013, Governor Mark Dayton signed a bill expanding the “Ban the Box” law to private employers that will go into effect beginning Jan. 1, 2014. “Ban the Box” has applied to public employers in Minnesota since 2009.
The law requires public, and now private, employers to wait until a job applicant has been selected for an interview or conditional offer of employment has been extended before asking a job applicant about criminal records or conducting a criminal record check.
This law offers the vast majority of individuals with a non-violent criminal record a second chance at an opportunity for employment to better their lives.
Existing laws will continue to protect vulnerable adults and children from people with violent or sexual criminal histories. Additionally, employers may exclude applicants if a crime is relevant to the position’s job duties.
Credit History
The practice of conducting credit history checks, per se, is not discriminatory. However, credit checks on applicants may prove problematic. Applicants’ credit records could reveal marital status, date of birth or public assistance status.
Rejecting applicants on the basis of poor creditworthiness or history could have a disproportionate, adverse impact on applicants who received public assistance, or who are of particular races or marital status.
It may be that a credit check is only done on individuals being offered certain jobs, such as fiscal positions, where money-handling is an essential job function. An employer may need to justify such inquiries, and it may want to minimize its exposure, should the practice occur and then be challenged.
Neutral Practices and Adverse Impact
If a facially neutral employment practice (one that does not appear to be discriminatory on its face) is challenged, and it is shown to have a statistically significant, adverse impact on a particular group within a protected class, an employer must justify that practice by demonstrating that it is manifestly related to the job or significantly furthers an important business purpose.
If this justification is established, the practice may still be discriminatory if it is demonstrated that there is a comparably effective practice which would cause a significantly lesser adverse impact on people of the identified protected class status.