by Chuck Lentz, Esq.
The Minnesota Legislature recently enacted a law designed to protect employers from some of the legal risks that may accompany hiring people with criminal backgrounds. The law is designed to help those who have served their sentences re-enter society as productive citizens.
External and internal risks
Most employers are rightly concerned about both internal and external risks associated with hiring someone with a criminal record. Most often, they fear that employees with past criminal convictions might harm co-workers or pose an embezzlement or fraud risk.
Concerns about external risks stem from negligence claims that have been successfully brought against Minnesota employers when they have hired people with criminal backgrounds, and the employee has subsequently harmed someone in the course of employment.
An employer may be liable for injuries caused by an employee after the employer learns about a criminal background or conduct but does not discharge the employee. Lawyers, refer to those claims as “negligent hiring” or “negligent retention” cases. In either case, the employer (or the employer’s insurance company) may be on the hook for any harm caused by an employee with a criminal history.
Unsurprisingly, many employers choose to lessen those risks by opting not to hire individuals with criminal backgrounds whenever there is a reasonable alternate.
The hope behind the new Minnesota law—which grants limited protection for organizations that hire people with criminal records—is that more employers will hire these individuals and create employment opportunities that would not have existed otherwise.
What the law protects
For private-sector employers, the legislation, part of the Minnesota Public Safety Policy Omnibus Bill of 2009, establishes obstacles to using an employee’s criminal history as evidence against an employer in any case brought because of the employee’s actions.
Specifically, the law provides that information regarding a criminal history of a current or former employee may not be introduced as evidence in any civil suit against an employer, its employees or its agents arising out of the conduct of the employee with a criminal record, if:
1. The duties of the position held by the employee with a criminal history did not expose others to a greater degree of risk than that created by the employee’s dealings with the public outside of work, or that might be created just by being employed in general.
2. A court sealed any part of the criminal record of the employee or the employee received a pardon.
3. The criminal record is for an arrest or charge that did not result in a conviction.
The actual extent of the protection created by this new law is hard to determine. That is primarily because of confusion about the meaning of item No. 1 above. The courts will have to interpret the statute and apply the language.
Until that happens, however, employers must try to understand and apply the language on their own.
But in the view of many employment lawyers, the thrust of the statute is to establish a rule: Unless the nature of the job given to the employee with a criminal background creates an extra or “enhanced risk” (see box) of harm to others when combined with the fact of the employee’s criminal background, the existence of the employee’s criminal background will not be allowed into evidence in a case brought against the employer.
The new law does create some security for employers that hire a person with a criminal background—particularly when they are hired for positions that do not provide any greater opportunity for further criminal activity than would exist if the person were not hired.
How much security the new law creates, however, is still an open question and both the hiring manager and an HR professional should carefully evaluate each hiring decision.
Author: Chuck Lentz practices employment and Gray Plant Mooty’s Minneapolis office. Contact him at (612) 632-3363 or firstname.lastname@example.org. in
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