['Recruiting and hiring']
['Negligent Hiring / Retention']
04/26/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Minnesota, an employee/former employee may take action against a public or private employer/former employer for making any disclosure to a prospective employer or employment agency, if he/she can demonstrate that:
- The disclosure information was false, and
- The disclosure information was defamatory, and
- The employer/former employer knew the information was false (or should have known it was false), and
- The employer/former employer intentionally injured the employee/former employee.
A “private” employer/former employer may disclose information to a prospective employer or employment agency upon request of the prospective employer or employment agency, so long as a copy of such information must be mailed to the employee/former employee. Such information may include:
- Employment dates,
- Wages and compensation,
- Job description and duties,
- Employer-provided training/education, and
- Any documented violence, theft, harassment, or illegal conduct that resulted in discipline or resignation, along with the employee’s written responses.
Also for private employers/former employers, further written disclosure of the following information may be made only upon written consent of the employee/former employee, and so long as a copy is sent to the employee/former employee along with mention of to whom the information was disclosed:
- Written employee evaluations and employee responses, made prior to the employee’s/former employee’s separation from the employer/former employer;
- Written disciplinary warnings and employee responses, within five years of the written consent; and
- Written reasons for employment separation.
A “public” employer/former employer may disclose all public personnel data to a prospective employer or employment agency. However, a public employer/former employer may disclose the following private personnel data to a prospective employer or employment agency, only upon written consent of the employee/former employee:
- Written employee evaluations and employee responses, made prior to the employee’s/former employee’s separation from the employer/former employer; and
- Written reasons for employment separation.
The health care facilities listed in Minnesota Statute 604A.33 may disclose to prospective employers, upon written request, certain information about an employee/former employee. Paper copies of this shared information must be provided to the employee/former employee, upon request.
An employer must respond in writing within 10 days of a former terminated employee’s request, of the true reasons for termination, if the request is made within 15 days of termination. Such responses are free from libel, slander, or defamation actions.
Arrest record inquiries
Both the EEOC and Minnesota have no laws or regulations specifically prohibiting arrest record inquiries. However, “Hiring, Job Interviews and the Minnesota Human Rights Act” published by the Minnesota Department of Human Rights states that while arrest inquires are not prohibited, they may negatively impact certain racial or ethnic minority groups.
The EEOC’s Notice N-915-061 goes further by saying, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
Except for certain occupations listed in Minnesota Statute 364.09, Minnesota public employers may not disqualify a person from employment because of a conviction, unless the offense relates directly to the job. Job relatedness considers the nature of the offense, how it relates to the position, and how it relates to the ability and fitness to perform the job. Minnesota public employers may not disqualify a person from employment if the person can prove he/she has been sufficiently rehabilitated and is fit to perform the job. Minnesota may not release conviction records that relate to convictions that have been expunged/annulled or were misdemeanors with no jail time.
Convictions are defined as convictions for felonies, gross misdemeanors, and misdemeanors with a jail sentence.
Both the EEOC and Minnesota have no laws or regulations specifically prohibiting conviction record inquiries for private employers. However, “Hiring, Job Interviews and the Minnesota Human Rights Act” published by the Minnesota Department of Human Rights states that while conviction record inquires are not prohibited, they may negatively impact certain groups of people. Therefore, it may be discriminatory to bar employment from all people with conviction records, unless having a clear record is an occupational qualification or unless barring convicts would not statistically affect a certain group of people. The employer must consider how the conviction relates to the job and when the conviction occurred, before making a negative hiring decision. The employer should inform applicants that he/she will consider these factors.
Somewhat similarly, the EEOC’s Notice N-915 says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964 in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
Minnesota Department of Labor and Industry
Arrest record inquiries
Minnesota Department of Human Rights
Conviction record inquiries
Minnesota Department of Human Rights
Regulations
Employer immunity from disclosure claims
Minnesota Statute 181.933, Notice of termination
Minnesota Statute 181.967, Employment references
Minnesota Statute 604A.33, Reference checks by certain health care providers and facilities
Arrest record inquiries
Minnesota Statute 364.02, Definitions
Minnesota Statute 364.03, Relation of conviction to employment or occupation
Minnesota Statute 364.04, Availability of records
Minnesota Statute 364.09, Exceptions
Conviction record inquiries
Minnesota Statute 364.02, Definitions
Minnesota Statute 364.03, Relation of conviction to employment or occupation
Minnesota Statute 364.04, Availability of records
Minnesota Statute 364.09, Exceptions
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.