According to a 2018 report by the National Association of Professional Background Screeners, more than 80% of employers conduct criminal background checks on all job applicants. Criminal background reports in particular can have far-reaching consequences for job applicants and employees. An estimated sixty-five million adults (nearly one in four) have some sort of criminal record. This large group of individuals may be denied employment or even lose their jobs because of a criminal background report. However, there are some protections afforded to Minneapolis job applicants and employees regarding employment background check reports.
The main law governing criminal background reports in Minneapolis is the Fair Credit Reporting Act (“FCRA”). Despite its somewhat misleading name, the FCRA applies to both credit reports and criminal background reports, and it covers employers and companies that create background reports.
When a company uses public record information for employment purposes—which is often the case regarding criminal records—the FCRA mandates strict procedures to ensure the information is accurate and up-to-date, particularly if that public record information is likely to have a negative effect on an individual’s ability to obtain employment.
According to the law, a Minneapolis employer cannot perform an employment background check unless it makes a clear and conspicuous disclosure in writing to the job applicant or employee before the report is procured. The disclosure must be in a document that consists solely of the disclosure and state that a report may be obtained for employment purposes and that the job applicant or employee has authorized it in writing.
If an employer intends to take an “adverse action” against a current employee (e.g., firing, demoting, etc.) or (in most cases) refuses to hire an applicant because of information contained in a background report, there are certain requirements it must follow under the FCRA. The employer must provide employees or job applicants with the following:
Too often, Minneapolis individuals may not closely review their employment background check reports and suffer an adverse employment action because of false or misleading information, or because information was reported that is prohibited from disclosure by law. Employees should review employment background check reports prepared about them because they may contain false or misleading information. In Minnesota, employees and applicants have the right to request their background report at the time they consent to having the report prepared.
Under the FCRA, background screening companies may be liable not only for inaccurate information, but also if the information is misleading in such a way and to such an extent that it can adversely affect employment decisions. Errors that can appear on a criminal background report can include:
The FCRA also prohibits certain information from being reported by a background screening company. Importantly, a background report cannot include arrests or criminal charges that did not result in a conviction that predate the report by more than seven years. This is an important prohibition, as many arrests and criminal charges never result in a conviction. If a criminal background check in Minneapolis reports a criminal charge that did not result in a conviction that is more than seven years old, they may be held legally responsible for reporting that information and the negative consequences that result from that disclosure.
The FCRA allows an individual to bring a lawsuit against a background screening company if that company produces a criminal background report that includes false or misleading information or if it reports information prohibited from disclosure. While the remedies available are specific to each case, they can include compensatory damages, damages for lost wages, punitive damages, and penalties.
The Minnesota Human Rights Act (“MHRA”) and Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), prohibit employment practices that discriminate on the basis of a “protected status,” such as age, race, national origin, sex, etc. These laws prohibit not only practices stemming from animus toward a protected status (called “disparate treatment”), but also include neutral policies that disproportionately affect individuals of a certain protected status (called “disparate impact”).
According to guidance materials created by the Equal Employment Opportunity Commission (“EEOC”), national data support a finding that criminal record exclusions have a disparate impact based on race and national origin. This data provides a basis for the EEOC to investigate violations of Title VII where it is alleged that criminal record exclusions have a disproportionate effect of excluding employees and applicants of certain racial and national origin groups. Normally, an employer will have to show that its process of excluding applicants or employees with certain criminal records is “job-related and consistent with business necessity.” More information about Minneapolis employment background checks and equal employment opportunity laws can be found through the EEOC.
Additionally, the MHRA prohibits an employer from requesting or requiring—before an applicant is hired—an applicant to provide information about the individual’s race, religion, national origin, public assistance, sex, color, marital status, sexual orientation, familial status, age, creed, or disability. This prohibition may intersect with employment background check reports, as employers may require applicants to provide information (such as date of birth) in connection with a pre-employment background check. It is the Minnesota Department of Human Rights’ position that such an inquiry violates the MHRA. The MDHR provides additional information on prohibited pre-employment practices in Minnesota.
If you have been subject to a background check that contains false or misleading information, or information that is prohibited from disclosure under the FCRA, we want to hear from you. The lawyers at Wanta Thome are experienced in handling background check claims and will speak to you without charge for an initial consultation. Contact us to discuss your rights and the Minneapolis employment background check laws.
Contact us for a no-obligation confidential consultation with our employment law team.
