Minnesota Ban-the-Box and Background Check Rules

When can a Minnesota employer ask about an applicant’s criminal history?

A Minnesota employer may not ask about, consider, or require disclosure of an applicant’s criminal history until the applicant has been selected for an interview. If there is no interview, the line moves to the conditional offer. The rule covers every “public or private employer.”

The text of Minn. Stat. § 364.021, para. (a) says an employer “may not inquire into or consider or require disclosure of the criminal record or criminal history of an applicant for employment until the applicant has been selected for an interview by the employer or, if there is not an interview, before a conditional offer of employment is made to the applicant.”

Three verbs do the work, and each one closes a different workaround. “Inquire into” reaches the checkbox on the application and the screening question a recruiter asks by phone. “Consider” reaches information you find on your own before the interview stage. “Require disclosure” reaches a form that makes the applicant volunteer the record.

In practice, the rule sets the order of your hiring steps. Screen on skills and experience first, choose the people you will interview, and only then raise criminal history or start a background check. A federal contractor has a later line for a position related to work under its contract: 41 U.S.C. § 4714(a)(1)(B) makes it a condition of the contract that the contractor “may not verbally, or through written form, request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before the contractor extends a conditional offer to the applicant,” unless consideration before the offer “is otherwise required by law” (§ 4714(a)(2)). For roles filled without an interview, the check follows a conditional offer of employment, and the offer letter should say it depends on the check. That same sequencing matters for medical questions too, which is why conditional offers under the ADA are worth reading alongside this rule.

What can a job application or posting still say about criminal records?

A Minnesota application or job posting may tell applicants that the law or your policy will disqualify a person with a particular criminal history from particular positions. An employer that has a statutory duty to run a criminal background check during hiring is outside the timing rule altogether.

The notice permission is in Minn. Stat. § 364.021, para. (c): the section “does not prohibit an employer from notifying applicants that law or the employer’s policy will disqualify an individual with a particular criminal history background from employment in particular positions.” A posting for a delivery driver, for example, may say that a specified driving-related conviction disqualifies applicants under company policy. The notice should name the position and the kind of record, because the permission is for “a particular criminal history background” and “particular positions,” not a general warning that records matter.

The exemption is in Minn. Stat. § 364.021, para. (b): the section “does not apply to the Department of Corrections or to employers who have a statutory duty to conduct a criminal history background check or otherwise take into consideration a potential employee’s criminal history during the hiring process.” The exemption turns on a “statutory duty,” and a company policy of checking everyone, or an industry habit, is not a statutory duty. If you rely on the exemption, I suggest identifying the specific statute in your hiring file and, as the cautious course, confining early questions to the positions that statute covers.

How is Minnesota’s ban-the-box law enforced?

The Minnesota Department of Human Rights investigates a private employer’s violations of the timing rule and may impose fines that scale with the number of people employed at a Minnesota site. Those penalties are the statute’s only remedies, and a private employer is not otherwise liable for complying or failing to comply.

Under Minn. Stat. § 364.06, subd. 2(a), “The commissioner of human rights shall investigate violations of section 364.021 by a private employer.” For violations after December 31, 2014, the penalties in § 364.06, subd. 2(c) are:

1. For employers that employ ten or fewer persons at a site in Minnesota, “up to $100 for each violation, not to exceed $100 in a calendar month.”
2. For employers that employ 11 to 20 persons at a site in Minnesota, “up to $500 for each violation, not to exceed $500 in a calendar month.”
3. For employers that employ more than 20 persons “at one or more sites in this state,” “up to $500 for each violation, not to exceed $2,000 in a calendar month.”

The statute then makes these remedies exclusive for the timing rule: “The remedies under this subdivision are exclusive. A private employer is not otherwise liable for complying with or failing to comply with section 364.021” (§ 364.06, subd. 2(d)).

The fines are modest, but a fine is not the whole cost. An investigation pulls your application forms and hiring records into a government file, and the fix is the same one you would have made at the start: a clean application and a written order of hiring steps.

What are the rules for ordering a background check report?

Before you order a background report from a screening company, Minnesota and federal law both require a written disclosure to the applicant. Federal law also requires the applicant’s written authorization, plus added notices for an investigative consumer report, and Minnesota requires a box the applicant can check to get a free copy of the report.

Both laws apply to a “consumer report,” which the FCRA defines as “any written, oral, or other communication of any information by a consumer reporting agency” bearing on a person’s “credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living” (15 U.S.C. § 1681a(d)). A criminal-records check, a driving-record check, and a credit report from a screening company all fit that description.

Minnesota’s rule, in Minn. Stat. § 13C.02, subd. 1, is that a person “may not obtain or cause to be prepared a consumer report on a consumer for employment purposes unless the person clearly and accurately discloses to the consumer that a consumer report may be obtained or caused to be prepared.” Under § 13C.02, subd. 2, the disclosure “must be in writing and must be provided to the consumer before the consumer report is obtained or caused to be prepared”; if you use a written application, “the disclosure must be included in or accompany the application”; and it “must include a box that the person may check off and return to receive a copy of the consumer report.” The applicant pays nothing: “A consumer may not be charged for a report provided under this section.” Subdivision 1 also says the disclosure “must inform the consumer of the right to request additional information on the nature of the report under subdivision 3,” and for an investigative consumer report it “must inform the consumer that the report may include information obtained through personal interviews regarding the consumer’s character, general reputation, personal characteristics, or mode of living.”

The federal rule is stricter about form. 15 U.S.C. § 1681b(b)(2)(A) requires “a clear and conspicuous disclosure” made in writing “in a document that consists solely of the disclosure,” and the applicant must have “authorized in writing” the report, which may be done on the same document. A disclosure buried in the application, or packed with a liability waiver, does not meet that “solely” requirement. For an investigative consumer report, 15 U.S.C. § 1681d adds a disclosure that “is made in a writing mailed, or otherwise delivered, to the consumer, not later than three days after the date on which the report was first requested,” and “includes a statement informing the consumer of his right to request the additional disclosures provided for under subsection (b) of this section and the written summary of the rights of the consumer prepared pursuant to section 1681g(c) of this title,” and on the applicant’s written request made “within a reasonable period of time” after receiving that disclosure, you must “make a complete and accurate disclosure of the nature and scope of the investigation requested.” Under § 1681d(b), that response “shall be made in a writing mailed, or otherwise delivered, to the consumer not later than five days after the date on which the request for such disclosure was received from the consumer or such report was first requested, whichever is the later.”

The two rules fit together in one step. I suggest a standalone disclosure-and-authorization form that carries the Minnesota check-off box and the Minnesota notice of the right to request more information, plus the § 1681d statement when the report is an investigative consumer report. If you use a written application, Minnesota requires that “the disclosure must be included in or accompany the application,” so the standalone form should go out with the application. The same discipline applies to other screening sources, from screening an applicant’s social media to reference calls.

How should an employer weigh a criminal record after the interview?

Once an applicant is selected for an interview, the ban-the-box timing rule allows you to consider the record, and the question becomes whether your decision is defensible. For an employer with 15 or more employees, federal law requires that a screening practice causing a disparate impact by race, color, religion, sex, or national origin be “job related for the position in question and consistent with business necessity.” Smaller employers are covered by the Minnesota Human Rights Act, which defines an employer as “a person who has one or more employees” (Minn. Stat. § 363A.03, subd. 16). Under that Act, an employer may not, because of race, color, creed, religion, national origin, sex, or another listed class, “refuse to hire or to maintain a system of employment which unreasonably excludes a person seeking employment” (Minn. Stat. § 363A.08, subd. 2).

The federal job-related standard comes from Title VII, 42 U.S.C. § 2000e-2(k), and it reaches an employer that “has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year” (42 U.S.C. § 2000e(b)). A blanket rule against hiring anyone with any record is the practice most likely to fail that test. The FCRA lets a background-check company furnish a report for employment purposes only if you certify that information from the report “will not be used in violation of any applicable Federal or State equal employment opportunity law or regulation” (15 U.S.C. § 1681b(b)(1)(A)), so the same question attaches to every report you order. Automated tools raise it too; automated screening tools can apply a records filter at scale before anyone looks at the result.

Minnesota’s own “directly relate” test, in Minn. Stat. § 364.03, subd. 1, is written for “public employment” and licensed occupations, not private hiring. It still gives a private employer a sensible structure for the decision. Under § 364.03, subd. 2, a public employer considers “the nature and seriousness of the crime or crimes for which the individual was convicted” and “the relationship of the crime or crimes to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the position of employment or occupation.”

The Minnesota Supreme Court has made the same point from the other direction. In Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn. 1983), the court wrote: “There are many persons in Minnesota who have prior criminal records but who are now good citizens and competent and reliable employees.” I suggest writing down, for each position, which offenses matter and why, and making each decision against that written standard rather than case by case.

How do you turn down an applicant because of a background report?

Before you reject an applicant based in whole or in part on a background report, federal law requires you to give the applicant a copy of the report and a written description of the applicant’s rights. After you decide, you send a notice of the adverse action with the screening company’s contact information, and Minnesota adds its own notice of the right to a copy and to dispute errors.

The first step is in 15 U.S.C. § 1681b(b)(3)(A): “before taking any adverse action based in whole or in part on the report,” the employer must provide “a copy of the report” and a written description of the applicant’s rights under the FCRA. The point of this pre-adverse-action notice is to let the applicant correct a wrong record, such as a conviction belonging to someone with the same name, before the decision is final.

The second step is in 15 U.S.C. § 1681m(a): notice of the adverse action, the name, address, and telephone number of the consumer reporting agency, “a statement that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide the consumer the specific reasons why the adverse action was taken,” notice of the right “to obtain, under section 1681j of this title, a free copy of a consumer report on the consumer from the consumer reporting agency referred to in paragraph (3), which notice shall include an indication of the 60-day period under that section for obtaining such a copy,” and notice of the right to dispute the report’s accuracy or completeness with the agency.

Minnesota’s version, Minn. Stat. § 13C.03, applies when employment is denied “wholly or partly because of information contained in a consumer report.” The employer must tell the applicant so, notify the applicant of the right to a copy if one was not already received under the check-off box, and give “the name and address of the consumer reporting agency making the report and a notice of the consumer’s right to dispute and correct any errors and of the procedures under United States Code, title 15, sections 1681 to 1681t.”

Skipping these steps carries real exposure. For a willful violation, the FCRA allows actual damages “or damages of not less than $100 and not more than $1,000,” plus “such amount of punitive damages as the court may allow,” costs, and attorney fees (15 U.S.C. § 1681n(a)). Because the same form letters go to every applicant, a defect in a template repeats with every hire.

How does negligent hiring liability work in Minnesota?

Minnesota recognizes a negligent hiring claim against an employer that fails to use reasonable care in hiring someone who, because of the job, poses a threat of injury to others. How much checking reasonable care requires depends on the risk the job creates, and the Minnesota Supreme Court has refused to make a criminal-records check automatically required as a matter of law.

In Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn. 1983), the Minnesota Supreme Court held “that an employer has the duty to exercise reasonable care in view of all the circumstances in hiring individuals who, because of the employment, may pose a threat of injury to members of the public.” The court tied the depth of the investigation to the job: “The scope of the investigation is directly related to the severity of risk third parties are subjected to by an incompetent employee.” It contrasted the “slight care” that “might suffice in the hiring of a yardman, a worker on a production line” with a job giving an employee “a passkey permitting admittance to living quarters of tenants.”

The court rejected a rule that every employer must check criminal records: “Liability of an employer is not to be predicated solely on failure to investigate criminal history of an applicant, but rather, in the totality of the circumstances surrounding the hiring, whether the employer exercised reasonable care.” What sank the employer in Ponticas was a pattern. The applicant described his convictions as “traffic tickets” and nobody asked further; his references turned out to be his mother and sister; and he was hired in a hurry after the first choice declined, then handed a passkey to 198 apartments.

A separate, analogous claim now reaches contractors. In Alonzo v. Menholt, 9 N.W.3d 148 (Minn. 2024), the Minnesota Supreme Court held that “The tort of negligent selection of an independent contractor exists under the common law of Minnesota” and explained that the degree of care “will vary depending on the circumstances” of each case. A claim that a manager failed to act on warning signs after hiring is a different theory, covered under negligent retention and supervision.

For an employer, the working rule is to match the check to the job. A position with keys to customers’ homes, access to children or vulnerable adults, company vehicles, or cash calls for a criminal-records check after the interview stage and real follow-up on gaps and odd answers. A position without that access may call for much less.

What does Minnesota’s criminal-history evidence limit do for an employer?

Minnesota bars an employee’s criminal record from being used as evidence against a private employer in a lawsuit over that employee’s conduct in four situations, including where the job did not expose others to greater risk than ordinary life does. The limit lets you hire people with records for lower-risk jobs without that record becoming the centerpiece of a later lawsuit.

Under Minn. Stat. § 181.981, subd. 1, information about the criminal history record of an employee or former employee “may not be introduced as evidence in a civil action against a private employer or its employees or agents that is based on the conduct of the employee or former employee,” if any of these applies:

1. “the duties of the position of employment did not expose others to a greater degree of risk than that created by the employee or former employee interacting with the public outside of the duties of the position or that might be created by being employed in general;”
2. before the act giving rise to the lawsuit, a court order sealed a record of the criminal case, a record was sealed through automatic expungement, or the employee “received a pardon;”
3. “the record is of an arrest or charge that did not result in a criminal conviction;” or
4. “the action is based solely upon the employer’s compliance with section 364.021.”

The first clause carries the most weight for hiring decisions. It tracks the Ponticas scale: for a job that adds no special risk, the record stays out of the case. For a job with keys, vehicles, or access to vulnerable people, the protection under that clause may not apply, and the quality of your screening is what a jury would weigh. The fourth clause keeps the record out of a suit based solely on your compliance with § 364.021’s timing rule.

The statute does not displace industry rules: it “does not supersede a statutory requirement to conduct a criminal history background investigation or consider criminal history records in hiring for particular types of employment” (§ 181.981, subd. 2).

A Minnesota hiring process that holds up follows a fixed order. Qualifications are screened first. Criminal history comes up only after applicants are selected for interviews (after a conditional offer, for a position related to work under a federal contract). Before a report is ordered, the applicant gets a standalone disclosure-and-authorization form with the Minnesota check-off box and notices, given with any written application (plus the federal § 1681d statement for an investigative consumer report). The pre-adverse-action and adverse-action notices go out before and after any rejection. And the depth of the check should match the risk of the job. Background screening policies are a regular part of my employment law work for Minnesota employers. If you would like a second set of eyes on your application form, disclosure form, or adverse-action letters, email me at aaron@aaronhall.com to start an intake and conflict check before sending any confidential documents.