New Minnesota Statute Limits Use of Criminal History Information in Civil Claims Against Employers
By: MARY M. KRAKOW
September 2009
A new Minnesota statute may help private employers defend against certain civil claims arising from the harmful conduct of an employee or former employee.
Minnesota Statute § 181.981, which took effect on August 1, 2009, prohibits introduction of an employee’s or former employee’s criminal history as evidence in a civil action seeking to hold a private employer liable for damages caused by the conduct of the employee or former employee. The statute does not apply to public (governmental) employers.
The new statute applies only if one of three different conditions applies to the employee or former employee who engaged in the harmful conduct giving rise to the lawsuit:
- The employee’s employment duties did not create any greater risk of harm to others than generally created by the employee’s interactions with the public or by employment in general; or
- Before engaging in the harmful conduct, the prior criminal record of the employee had been sealed or the employee had received a pardon; or
- The employee’s previous arrest or other charge did not result in criminal conviction.
The statute does not supersede any statutory obligation for an employer to conduct criminal history background checks as part of the hiring process. For example, among others, Minn. Stat. § 299C.68 (known as the Kari Koskinen law) requires criminal background checks for all potential rental property managers; Minn. Stat. § 123B.03 requires criminal background checks for certain school employees; and Minn. Stat. Chapters 144 and 145C require criminal background checks for certain employees who will have direct patient contact in hospitals, nursing homes, hospice centers, etc.
The full reach and applicability of the new statute will be determined in court cases, but one likely claim to which the statute will apply is negligent hiring. Negligent hiring claims typically arise when an employee physically harms a co-worker or a member of the public in the course of employment. The injured person claims that the employer (1) had a duty not to hire a dangerous employee; (2) failed in that duty; (3) should have reasonably foreseen the consequences of that failure; and, (4) therefore, should be held liable for the damages suffered.
The plaintiff often uses the employee’s criminal history to show that the person was dangerous. The plaintiff then argues that, based on the employee’s criminal history, the employer should not have hired the person. Previously, this argument applied when the employer had not performed a criminal background check or when it had but hired the person anyway. Under this new statute, the plaintiff will not be allowed to use the employee’s criminal history record to prove its case against the employer if one of the aforementioned three conditions applies.
Even if performing a pre-hire criminal background check is not statutorily required, obtaining criminal history information remains an important hiring tool for many employers. But, to avoid claims of wrongful failure to hire, employers who obtain criminal history information may use it for hiring purposes (and other employment decisions) only if it is reasonably related to the job sought.
Additionally, an employer who uses an outside entity or individual (commonly referred to as a consumer reporting agency) to conduct criminal (or other) background checks or investigations regarding applicants or current employees must comply with the requirements of both the federal Fair Credit Reporting Act and the Minnesota Access to Consumer Reports Act.
Employers with questions regarding the use of criminal background checks or consumer reporting agencies to obtain them are encouraged to contact their employment counsel.
Takeaway
New Minnesota Statute § 181.981 may help employers defend negligent hiring claims based on the harmful conduct of their employees.