Employers hiring certain types of employees are required by law to perform background checks. For example, employers hiring security guards are required to check their backgrounds with the Bureau of Criminal Apprehension, and employers hiring certain counselors are required to check their references for evidence of sexual contact with patients or former patients. (See footnote 21.) Public and private schools are required to check the criminal history on all individuals who are offered employment in the school. (See footnote 22.) Rental property owners must request background information from the Bureau of Criminal Apprehension before hiring property managers. (See footnote 23.) Finally, employees, contractors and volunteers of a home health care provider or hospice are subject to background checks. See footnote 24)

In addition to the background checks required by statute, employers should perform background checks appropriate to the job for which the applicant is applying. For example, an employer hiring a convenience store clerk may want to conduct a background check because the clerk works primarily alone and handles cash.

The negligent hiring, retention and supervision doctrines also impose a duty on employers to use reasonable care in the selection, retention and supervision of employees. If an employer hires, retains or fails to supervise employees whom it knows or should know may cause harm, that duty has been breached and liability may result. In an effort to encourage employers to share important information about an employee’s work history (when requested), Minnesota has a reference law designed to protect an employer from civil liability. A more complete discussion of Minnesota’s reference law is discussed in the chapter on Terminations.

To avoid discrimination claims, an employer who performs background checks should be able to justify the inquiry. A hotel may want to conduct background checks on all of its employees who have access to guest rooms, as may a manufacturing company who hires employees to drive forklifts in the warehouse. Employers should not ask anything during a background check that cannot be asked of the applicant directly. Employers also need to be aware that outside firms used to conduct background checks must comply with these rules as well. Background checks should be done for all persons considered for the particular position as part of the hiring process.

Under the Americans with Disabilities Act, employers may ask an applicant’s previous employers about job functions and tasks performed by the applicant, the quantity and quality of work performed, how job functions were done, the applicant’s attendance record (not how many days the applicant was absent from work because of an illness or injury), and other job-related issues that do not relate to disability. (See footnote 25.)

Because the Minnesota Human Rights Act generally prohibits employers from seeking and obtaining information from any source that pertains to the individual’s protected class (age, marital status, etc.) for the purpose of making a job decision, employers should exercise great caution and consult with counsel before obtaining background information.

Under the federal Fair Credit Reporting Act (See footnote 26.) and its Minnesota counterpart, the Access to Consumer Reports law (See footnote 27.), Minnesota employers are subject to specific notification and disclosure requirements regarding their use of consumer credit reports to learn background information about applicants and employees. (See footnote 28.) Credit history checks may reveal marital status, date of birth or public assistance status. Employers are advised to consult legal counsel for a discussion of the rules and potential liabilities before they use these reports to assist them in their hiring and employment decisions.

CREDITS: This post is an excerpt from An Employer’s Guide to Employment Law Issues in Minnesota, originally produced through a collaborative effort between the Minnesota Department of Employment and Economic Development and Lindquist & Vennum, P.L.L.P.

This post is part of a series of posts on hiring an employee in Minnesota.

21. Minn. Stat. §§ 326.336 subd. 1; 148A.03(a)(2) (2007).
22. Minn. Stat. § 123B.03 (2007).
23. Minn. Stat. §§ 299C.67 et seq. (2007).
24. Minn. Stat. § 144A.46, subd. 5(b) (2007).
25. U.S. Department of Justice, The Americans with Disabilities Act: Title I Technical Assistance Manual § 5.5(g) (1992).
26. 15 U.S.C. §§ 1681 et. seq. (2007).
27. Minn. Stat. § 13C.001 et. seq. (2007).
28. 15 U.S.C. §§ 1681b, 1681k (2007); Minn. Stat. § 13C.02 (2007).