SF 1458

as introduced - 88th Legislature (2013 - 2014) Posted on 03/19/2013 09:22am

A bill for an act
relating to human rights; establishing Criminal Background Check Act;
proposing coding for new law in Minnesota Statutes, chapter 363A.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [363A.50] CITATION.
new text end

new text begin Sections 363A.50 to 363A.55 shall be known as the Criminal Background Check Act.
new text end

Sec. 2.

new text begin [363A.51] PUBLIC POLICY.
new text end

new text begin Subdivision 1. new text end

new text begin No legal obligation to conduct testing. new text end

new text begin Nothing in this chapter
creates a legal duty for employers to request or require an individual to submit to a
criminal background check as permitted in this section.
new text end

new text begin Subd. 2. new text end

new text begin Communicate possible bar to employment. new text end

new text begin Nothing in this chapter
prohibits an employer from notifying candidates that law or the employer's policy will
disqualify an individual with a particular criminal history background from employment
in particular positions.
new text end

new text begin Subd. 3. new text end

new text begin Freedom to collectively bargain. new text end

new text begin Nothing herein shall be construed to limit
parties to a collective bargaining agreement from bargaining and agreeing as to a criminal
background check policy that meets or exceeds, and does not otherwise conflict with, the
minimum standards and requirements for the protection of job applicants and employees.
new text end

new text begin Subd. 4. new text end

new text begin Severability. new text end

new text begin If any provision of this chapter is held invalid, the invalidity
does not alter the other provisions or applications of the chapter that can be given effect
without the invalid provision or application, and to this end the provisions of this chapter
are severable.
new text end

Sec. 3.

new text begin [363A.52] PREEMPTION.
new text end

new text begin Subdivision 1. new text end

new text begin Federal law. new text end

new text begin This chapter is not meant to preempt any federal law
that requires, allows, or provides direction to an employer on how to conduct a criminal
background check prior to hiring or promoting an individual.
new text end

new text begin Subd. 2. new text end

new text begin State law. new text end

new text begin This chapter is not meant to preempt chapter 364 or any state
law that requires, allows, or provides direction to an employer on how to conduct a
criminal background check prior to hiring or promoting an individual.
new text end

new text begin Subd. 3. new text end

new text begin Practice of law exception. new text end

new text begin This chapter shall not apply to the practice of
law or judicial branch employment. Nothing in this section shall be construed to preclude
the Supreme Court, in its discretion, from adopting the policies set forth in this chapter.
new text end

Sec. 4.

new text begin [363A.53] CRIMINAL BACKGROUND CHECK.
new text end

new text begin Subdivision 1. new text end

new text begin Applicable law. new text end

new text begin Unless there is a federal or state law that preempts
this statute, an employer may not request or require a job applicant to submit to a criminal
background check except as authorized in this section.
new text end

new text begin Subd. 2. new text end

new text begin Employer assessment. new text end

new text begin An employer may not request or require an
employee or job applicant to submit to a criminal background check unless the employer
validates the criminal conduct ban or exclusion for the position in light of the Uniform
Guidelines on Employee Selection Procedures or conducts an assessment consistent with
the applicable provisions of this section and section 363A.54.
new text end

new text begin Subd. 3. new text end

new text begin Reliability and fairness. new text end

new text begin An employer who requests or requires a job
applicant to submit to a criminal background check shall use the services of an agency that
is accredited by the National Association of Professional Background Screeners or obtain
information directly from the Minnesota Bureau of Criminal Apprehension.
new text end

new text begin Subd. 4. new text end

new text begin Evidence of rehabilitation. new text end

new text begin A person who has been convicted of a crime or
crimes shall not be disqualified from employment by an employer if the person can show
competent evidence of sufficient rehabilitation and present fitness to perform the duties of
employment. Sufficient evidence of rehabilitation may be established by the production of:
new text end

new text begin (1) a copy of the local, state, or federal release order;
new text end

new text begin (2) 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;
new text end

new text begin (3) evidence showing compliance with all terms and conditions of probation, parole,
or parole supervision;
new text end

new text begin (4) nature and seriousness of the crime or crimes;
new text end

new text begin (5) mitigating circumstances or social conditions surrounding the commission of
the crime or crimes;
new text end

new text begin (6) the age of the person at the time the crime or crimes were committed;
new text end

new text begin (7) the length of time elapsed since the crime or crimes were committed; and
new text end

new text begin (8) all other competent evidence of rehabilitation and present fitness presented,
including, but not limited to, letters of reference by persons who have been in contact with
the applicant since the applicant's release from any local, state, or federal correctional
institution.
new text end

new text begin Subd. 5. new text end

new text begin Available records. new text end

new text begin The following criminal records shall not be used by an
employer or any of its agents in determining whether to extend an offer of employment to
an individual interviewed:
new text end

new text begin (1) convictions which have been, pursuant to law, annulled or expunged;
new text end

new text begin (2) misdemeanor convictions for which no jail sentence can be imposed; and
new text end

new text begin (3) arrest records.
new text end

new text begin Subd. 6. new text end

new text begin Criminal background check limited to candidates interviewed. new text end

new text begin An
employer may not require a job applicant to submit to a criminal background check until
the employer has decided to interview the job applicant.
new text end

new text begin Subd. 7. new text end

new text begin Limit withdrawal of job offer, discipline, and discharge. new text end

new text begin (a) An
employer may not withdraw a job offer, discipline, or discharge an individual based on
information obtained from a criminal background check until the individual has been
provided with an opportunity to respond to the information obtained or the information
has been verified by a second criminal background check.
new text end

new text begin (b) Nothing in this section limits the ability of the employer to rescind a job offer,
discipline, or discharge an individual upon discovering that the individual has provided
false or misleading information.
new text end

new text begin (c) Nothing in this section requires an employer to extend a conditional job offer
prior to requesting an individual to submit to a criminal background check.
new text end

new text begin Subd. 8. new text end

new text begin Informing interview candidates of denial of employment. new text end

new text begin If an
employer, after interviewing a candidate, denies an employment opportunity solely or in
part because of the individual's prior conviction of a crime, the employer shall notify
the individual in writing of the following:
new text end

new text begin (1) the reasons for the denial of employment;
new text end

new text begin (2) the process to explain the negative criminal background history information; and
new text end

new text begin (3) the process to request and pay for a second criminal background check.
new text end

new text begin Subd. 9. new text end

new text begin Refusal by individual. new text end

new text begin An employer may decline to hire or promote an
individual on the basis of the individual's refusal to submit to a criminal background check
provided that the employer has a legitimate business justification to have candidates
submit to a criminal background check.
new text end

Sec. 5.

new text begin [363A.54] CRIMINAL BACKGROUND CHECK POLICY.
new text end

new text begin Subdivision 1. new text end

new text begin Contents of policy. new text end

new text begin An employer's criminal background check
policy must, at a minimum, set forth the following information:
new text end

new text begin (1) the job positions subject to a criminal background check;
new text end

new text begin (2) the circumstances under which an interview candidate will be rejected;
new text end

new text begin (3) the process that will be afforded for an interview candidate to explain a negative
criminal background check;
new text end

new text begin (4) the process that will be afforded for an interview candidate to request and pay for
a second criminal background check; and
new text end

new text begin (5) any other appeal procedures available.
new text end

new text begin Subd. 2. new text end

new text begin Notice. new text end

new text begin An employer shall post notice in an appropriate and conspicuous
location on the employer's premises that the employer has adopted a criminal background
check policy and that copies of the policy are available for inspection during regular
business hours by employees or job applicants.
new text end

new text begin Subd. 3. new text end

new text begin Notice to interview candidates. new text end

new text begin An employer shall require all individuals
subjected to a criminal background check to sign a form, developed by the employer,
that acknowledges that:
new text end

new text begin (1) the individual has given permission;
new text end

new text begin (2) the individual has seen the employer's criminal background check policy;
new text end

new text begin (3) the individual will be provided with a copy of the report and the opportunity
to explain any negative criminal background history information obtained prior to the
employer using the information;
new text end

new text begin (4) the employer will forward information obtained from the criminal history
background check to the individual within three working days of receipt of the information
by the employer; and
new text end

new text begin (5) the individual will be afforded an opportunity to request and pay for a second
criminal background check within three working days.
new text end

new text begin Subd. 4. new text end

new text begin Confirmatory study. new text end

new text begin If the confirmatory study does not confirm the original
information received from the criminal background check, no adverse personnel action
based on the original information may be taken against the employee or job applicant.
new text end

new text begin Subd. 5. new text end

new text begin Confidentiality. new text end

new text begin (a) All information obtained by an employer from a
criminal background check is confidential information and may not be disclosed without
the written consent of the employee or job applicant unless the information is used in
an alternative dispute proceeding, administrative hearing, or judicial tribunal and the
information is relevant to the proceeding, hearing, or court proceeding.
new text end

new text begin (b) None of the information obtained by an employer from a criminal background
check shall constitute personnel record information pursuant to section 181.960,
subdivision 4.
new text end

new text begin Subd. 6. new text end

new text begin Right to review information. new text end

new text begin An individual has the right to request
and receive from the employer a copy of any information obtained through a criminal
background check.
new text end

Sec. 6.

new text begin [363A.55] REMEDIES.
new text end

new text begin Subdivision 1. new text end

new text begin Civil right. new text end

new text begin Violation of the rights established in this chapter shall
constitute a violation of a person's civil rights.
new text end

new text begin Subd. 2. new text end

new text begin Damages. new text end

new text begin In addition to any other remedies provided by law, an employer
that violates this chapter is liable in a civil action for any damages allowable at law to an
employee or job applicant injured. If a violation is found and damages awarded, the court
may also award reasonable attorney fees if the court finds that the employer knowingly or
recklessly violated this chapter.
new text end

new text begin Subd. 3. new text end

new text begin Equitable relief. new text end

new text begin A court, in its discretion, may enjoin or grant any other
equitable relief it considers appropriate when it finds that an employer has committed or
proposes to commit an act in violation of this chapter.
new text end

new text begin Subd. 4. new text end

new text begin Retaliation. new text end

new text begin An employer may not retaliate against an individual for
pursuing their civil rights within this chapter.
new text end