SF 3035

2nd Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to crime; prohibiting use of nonconviction criminal records for private
employment purposes; providing immunity from negligent hiring in certain cases
involving criminal records; removing a sunset on the law governing Internet
access to Bureau of Criminal Apprehension data; amending Minnesota Statutes
2006, sections 13.87, subdivision 3; 364.09; proposing coding for new law in
Minnesota Statutes, chapter 364.

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

Section 1.

Minnesota Statutes 2006, section 13.87, subdivision 3, is amended to read:

Subd. 3.

Internet access.

(a) The Bureau of Criminal Apprehension shall establish
and maintain an Internet Web site containing public criminal history data by July 1, 2004.

(b) Notwithstanding section 13.03, subdivision 3, paragraph (a), the bureau may
charge a fee for Internet access to public criminal history data provided through August 1,
2005. The fee may not exceed $5 per inquiry or the amount needed to recoup the actual
cost of implementing and providing Internet access, whichever is less. Fees collected must
be deposited in the general fund as a nondedicated receipt.

(c) The Web site must include a notice to the subject of data of the right to contest
the accuracy or completeness of data, as provided under section 13.04, subdivision 4,
and provide a telephone number and address that the subject may contact for further
information on this process.

(d) The Web site must include the effective date of data that is posted.

(e) The Web site must include a description of the types of criminal history data not
available on the site, including arrest data, juvenile data, criminal history data from other
states, federal data, data on convictions where 15 years have elapsed since discharge of the
sentence, and other data that are not accessible to the public.

(f) A person who intends to access the Web site to obtain information regarding an
applicant for employment, housing, or credit must disclose to the applicant the intention to
do so. The Web site must include a notice that a person obtaining such access must notify
the applicant when a background check using this Web site has been conducted.

(g) This subdivision does not create a civil cause of action on behalf of the data
subject.

deleted text begin (h) This subdivision expires July 31, 2007.
deleted text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 2.

Minnesota Statutes 2006, section 364.09, is amended to read:

364.09 EXCEPTIONS.

(a) deleted text begin This chapter does deleted text end new text begin Sections 364.01 to 364.10 do new text end not apply to the licensing
process for peace officers; to law enforcement agencies as defined in section 626.84,
subdivision 1, paragraph (f); to fire protection agencies; to eligibility for a private
detective or protective agent license; to the licensing and background study process under
chapters 245A and 245C; to eligibility for school bus driver endorsements; to eligibility
for special transportation service endorsements; to eligibility for a commercial driver
training instructor license, which is governed by section 171.35 and rules adopted under
that section; to emergency medical services personnel, or to the licensing by political
subdivisions of taxicab drivers, if the applicant for the license has been discharged from
sentence for a conviction within the ten years immediately preceding application of a
violation of any of the following:

(1) sections 609.185 to 609.21, 609.221 to 609.223, 609.342 to 609.3451, or 617.23,
subdivision 2 or 3;

(2) any provision of chapter 152 that is punishable by a maximum sentence of
15 years or more; or

(3) a violation of chapter 169 or 169A involving driving under the influence, leaving
the scene of an accident, or reckless or careless driving.

deleted text begin This chapter also shall deleted text end new text begin Sections 364.01 to 364.10 do new text end not apply to eligibility for juvenile
corrections employment, where the offense involved child physical or sexual abuse or
criminal sexual conduct.

(b) deleted text begin This chapter does deleted text end new text begin Sections 364.01 to 364.10 do new text end not apply to a school district or
to eligibility for a license issued or renewed by the Board of Teaching or the commissioner
of education.

(c) Nothing in this section precludes the Minnesota Police and Peace Officers
Training Board or the state fire marshal from recommending policies set forth in deleted text begin this
chapter deleted text end new text begin sections 364.01 to 364.10 new text end to the attorney general for adoption in the attorney
general's discretion to apply to law enforcement or fire protection agencies.

(d) deleted text begin This chapter does deleted text end new text begin Sections 364.01 to 364.10 do new text end not apply to a license to practice
medicine that has been denied or revoked by the Board of Medical Practice pursuant to
section 147.091, subdivision 1a.

Sec. 3.

new text begin [364.20] USE OF NONCONVICTION RECORDS BY PRIVATE
EMPLOYERS; IMMUNITY FROM CIVIL LIABILITY.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin For purposes of this section:
new text end

new text begin (1) "conviction" has the meaning given in section 609.02, subdivision 5;
new text end

new text begin (2) "nonconviction criminal record" means a record of an arrest, citation, complaint,
prosecution, or other record relating to a criminal proceeding that is not pending and
did not result in a conviction; and
new text end

new text begin (3) "private employer" means a person hiring or employing individuals in this state,
but does not include the state or a political subdivision of the state governed by sections
364.01 to 364.10.
new text end

new text begin Subd. 2. new text end

new text begin Use of nonconviction records for private employment. new text end

new text begin Unless a
criminal background investigation is specifically required or permitted by law, a private
employer must not:
new text end

new text begin (1) request information regarding a nonconviction criminal record from an employee
or prospective employee or obtain access to a nonconviction criminal record from another
source; or
new text end

new text begin (2) take adverse action against an employee or prospective employee based on a
nonconviction criminal record.
new text end

new text begin Subd. 3. new text end

new text begin Affirmative defense. new text end

new text begin (a) To the extent a criminal record as of the date an
individual was hired is alleged as the basis for negligent hiring, a private employer shall
not be held liable for the hiring of the individual if the employer establishes that they
followed the provisions applicable to public employers in section 364.03 and reasonably
determined that:
new text end

new text begin (1) the conviction did not directly relate to the position of employment being sought;
or
new text end

new text begin (2) the individual showed evidence of sufficient rehabilitation and present fitness to
perform the duties of the employment being sought.
new text end

new text begin (b) This subdivision does not create any duty on the part of an employer to follow
the provisions of paragraph (a).
new text end

new text begin Subd. 4. new text end

new text begin Remedy. new text end

new text begin A private employer who violates subdivision 2 is liable to the
individual who is the subject of the criminal record for $1,000 or actual damages caused
by the violation, whichever is greater, plus costs and disbursements and reasonable
attorney fees.
new text end