Earlier this week, I received a question about employee criminal background checks. Let’s discuss…
Background on the employment vetting process:
Employers use a variety of techniques to explore whether or not an applicant is the “right” person for the job. In both pre-hiring and post-hiring contexts, a key motivator for any employer screening is to avoid liability that may come from employee conduct. For example, in Minnesota, an employer may be found liable based on the theories of negligent hiring, retention or supervision. In terms of hiring, an employer may be negligent for “placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.” Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 911 (Minn. 1983). Yet, if you take a well-rounded approach to vetting your candidates, you will be able to develop a reasonable idea of if they will be the “right” person for the job. The key is using a lot of different tools and techniques (including reference checks, criminal background checks, job applications).
Can I or how can I use criminal background checks as one of the many tools and techniques in vetting an employment candidate?
Criminal background checks are only one of the many tools you can use to explore your candidate, but you (the employer/nonprofit) must pay for them. And, if you choose to use them, you must remember that arrests are not convictions. The courts do not look favorable on employers that excluded employment candidates based on arrests.
Minnesota law provides a variety of statutes that detail the appropriateness of conducting criminal background checks (again, focused on convictions, not arrests). Much of this discussion centers around the type of job that will be performed (e.g. contact with minor children, vulnerable adults, corrections). For most positions, Minnesota Statutes . § 364.021 prohibits both public and private employers from inquiring about, requiring the disclosure of, or considering a job applicant’s criminal background during the initial stages of the hiring process. But, once an employer selects an applicant for an interview or makes a conditional job offer, the employer may then inquire about the applicant’s criminal history. Yet, according to M.S.A. § 364.03, a prior may not be used to disqualify a person from either public employment or any position for which a license is required unless the conviction directly relates to the position sought. And, even if the position and the crime are directly related, the convicted individual must be permitted to show evidence of rehabilitation and present fitness for the job.
Overall, you can use criminal background checks as a tool to help you vet your candidates. BUT, beware that they are simply ONE tool of the many that you possess.