Human Resources Guideline & Interpretation Criminal Background Checks of Applicants for Positions that Require Access to Operating Guns and Ammunition FSR0007 Purpose This guidance sets out the process, consistent with Minnesota Statutes Chapter 364 1, for conducting criminal background checks on applicants for a position requiring access to operating guns and ammunition. System colleges and universities shall use this background check process when filling positions for employment where assigned job responsibilities include handling or access to operating guns and ammunition. A criminal conviction will not automatically remove an individual from consideration for employment. Chapter 364 permits public employers to refuse to hire an individual based on his/her criminal record only if the conviction directly relates to the position being sought. In determining if a conviction directly relates to the position being sought, the hiring authority shall consider: Affects a) The nature and seriousness of the crime or crimes to the purposes of regulating the position of public employment sought; b) The relationship of the crime or crimes to the purposes of regulating the position of public employment sought; and c) 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; for positions requiring handling guns and ammunition, conviction of a crime that would disqualify an individual from possessing a firearm, under Minn. Stat. 624.713, will specifically be examined. https://www.revisor.mn.gov/statutes/?id=624.713 In this procedure, the term "applicant" is used to refer to a person who applies for a position within a college or university, whether as a new employee, a student worker, a volunteer, or a current State/system employee seeking to transfer or bid on a covered position. This guidance applies to all colleges and universities that employ individuals whose job responsibilities require access to operating guns and ammunition. Applicants or employees seeking to transfer/bid on such a position must undergo a criminal background check unless the individual supplies a current, valid transferee permit, issued pursuant to Minn. Stat. 624.7131, or a permit to 1 Minnesota Statutes Chapter 364 declares the state policy to encourage and contribute towards the rehabilitation of criminal offenders and limits the use of conviction information that may be considered by public employers in most hiring decisions to that which is directly related to the position. 1
carry a pistol, issued pursuant to Minn. Stat. 624.714. 2 Obtaining a criminal background check should be limited to those individuals to whom the institution intends to offer employment. Authoritative References: Minnesota Government Data Practices Act, Minnesota Statutes 13.04, Subd. 2 Minnesota Criminal Rehabilitation Act; Minnesota Statutes Chapter 364 Required Forms Criminal Background Information Request, Notice of Rights and Authorization to Conduct Criminal Background Check (http://www.hr.mnscu.edu/guide_interpretations/forms/fsr0007_form_a.pdf) This form contains a data practices notice and an authorization by the applicant for the Minnesota Bureau of Criminal Apprehension (BCA) to release private data to the institution. Minn. Stat. 13.04, Subd. 2. Responsibility for Implementation The chief human resources officer, in partnership with the hiring manager, is responsible for ensuring that the requirements of this guideline are met. Introduction: The following procedure shall be used. Procedure Part 1. Initial Notice to Applicants and Application Process. The Vacancy Notice or Internal Bid Posting shall include notice of the requirement of a criminal background check for each applicable position. Applicants to be considered for hiring for positions that require a background check shall be informed of this requirement by the appropriate departmental hiring authority. Applicants shall be informed of how to obtain additional information about the criminal background check procedure. Hiring authorities shall ask the applicant to whom it has determined it wishes to offer the position to read, complete, and sign the Notice of Rights (see Required Forms, above), or alternatively, to produce an original current, valid transferee permit, issued pursuant to Minn. Stat. 624.7131, or a permit to carry a pistol, issued pursuant to Minn. Stat. 624.714; review of such a document should be documented, and the hiring process may proceed. Offers of employment for covered positions should otherwise be contingent on receiving an acceptable response to a criminal background check. Applicant s failure to sign the consent form may result in withdrawal of the applicant s employment offer. Part 2. Process for Conducting the Check. 2 A criminal background check is required as a condition to be issued either permit. 2
The institution must submit the background check request to the Minnesota Bureau of Criminal Apprehension (BCA). A. The request must include a copy of the Notice of Rights and Authorization form, signed by the subject of the background check, and notarized. B. After conducting its check the BCA will return information to the requesting employer in the self-addressed envelope. (Questions regarding the BCA s procedure and current timelines may be directed to the BCA at 651.793.2400.) C. If the applicant has disclosed a residence or work in another state in the past ten years, it may be necessary to contact the BCA of those states to obtain background checks for those jurisdictions. Part 3. Process for Determining Eligibility. The institution s Human Resources Office has primary responsibility for reviewing and evaluating the criminal background check results in accordance with this procedure. 3 System Labor Relations and/or Office of General Counsel shall be consulted as appropriate. A. Applicants with no criminal conviction. Applicants with no criminal conviction pass the criminal background check and may start employment in the position. B. Applicants with criminal convictions. Applicants with a criminal conviction are subject to a determination of eligibility by the college or university based on whether the conviction is directly related to the position; remember that only convictions for offenses for which jail may be imposed may be considered, and not arrests, charges that did not result in a conviction or expunged convictions may be used. 1) Determine whether there is a direct relationship by using the following criteria: a) Nature and seriousness of the crime or crimes for which the individual was convicted. b) Relationship of the crime or crimes to the purposes of regulating the position of public employment sought. c) Relationship of the crime to the ability, capacity and fitness required to perform duties and discharge the responsibilities of the position of employment. Special attention should be given to convictions that would 3 Minn. Stat. 364.021(c )(2009) provides, in part: This section does not prohibit a public employer from notifying applicants that the law or the employer s policy will disqualify an individual with a particular criminal history background from employment in particular situations. 3
disqualify the individual from obtaining a permit to possess a firearm under Minn. Stat. 624.713. (2010 Law reproduced below). 2) If there is not a direct relationship between the criminal conviction and the position sought, the applicant shall not be disqualified solely or in part because of a prior criminal conviction. The applicant may begin employment. 3) If, after consulting with System Labor Relations and/or Office of General Counsel, as appropriate, the determination is made that the criminal conviction is directly related to the position sought, the applicant will be requested to present competent evidence of sufficient rehabilitation and fitness to perform the duties of the position sought such as: a) A copy of the local, state, or federal release order; and b) Evidence showing at least one year has elapsed since release from any local, state or federal correctional institution without subsequent conviction of a crime; and evidence showing compliance with all terms and conditions of probation or parole; or c) A copy of relevant Department of Correction s discharge order or other documents showing completion of probation or parole supervision. 4) The above information plus additional relevant information, including documentation presented by the applicant regarding the following, shall be considered: a) The nature and seriousness of the crime or crimes for which convicted; b) All circumstances relative to the crime or crimes including mitigating circumstances or social conditions surrounding commission of crime or crimes; c) The age of the person at the time the crime or crimes were committed; d) The length of time elapsed since the crime or crimes were committed; e) All other competent evidence of rehabilitation and present fitness including, but not limited to, letters of reference by persons who have been in contact with the applicant since the applicant s release from local, state, or federal correctional institution. 5) If the applicant is to be denied employment solely or in part based on the individual s prior criminal conviction, consult System Labor Relations and/or the Office of General Counsel prior to such denial. 6) If a decision is reached to deny employment solely or in part based on the individual s prior criminal conviction, Human Resources shall notify the individual in writing of the following: a) The grounds and reasons for the denial or disqualification; b) The applicable complaint and grievance procedures as set forth in Minnesota Statutes Ch. 14, the Administrative Procedures Act; c) The earliest date the person may reapply for a position; d) That all competent evidence of rehabilitation presented will be considered upon reapplication. 4
Part 4. Timing Considerations. Background checks will be conducted only after a contingent offer of employment has been made prior to appointment. All offers of employment for covered positions must be made conditional on passing the background check. Contingent employment offers must be withdrawn from applicants who refuse background checks or have criminal convictions that preclude employment in the applicable position. Current employees who are seeking to transfer or bid on a covered position and refuse or fail the background check will not be allowed to exercise transfer or bidding rights, or to accept reassignment to a covered position. Part 5. Failure to Pass a Criminal Background Check. Applicants who fail the criminal background check shall have offers of employment withdrawn. Current employees who are seeking to transfer to or bid on a covered position and fail the security check will not be allowed to exercise bidding rights or to accept reassignment to the covered position. Part 6. Data Practices and Records Retention. In accordance with the Minnesota Government Data Practices Act, criminal background check data shall be handled as private personnel data. When private data is collected, applicants shall be provided with appropriate data privacy notices and written consent for disclosure shall be obtained when required. Records pertaining to background checks, including but not limited to results of checks, should be placed in a separate file with a reference to its existence in the employee personnel files; the information shall be securely maintained in accordance with campus records retention schedules. Background checks performed under this guideline may only be requested by and provided to authorized representatives of the institution who have a need to know the information and may be used only for the purpose of the decision to hire the applicant or allow the transfer of an existing employee into a covered position. Part 7. Applicant/Employee Rights. Applicants and employees seeking a covered position have specific rights under Minnesota Statutes 13.04, including the right: 1) to be informed of the criminal background check requirement; 2) to be informed of the response to the background check and to acquire a copy of the background check report; 3) to obtain any record that forms the basis of the report; 4) the right to challenge the accuracy and completeness of information contained in the report; 5
5) to be informed if an application for employment has been denied as a result of the background check; and 6) to be informed of the right to an administrative hearing under Minnesota Statutes Chapter 14 to challenge the denial of employment based in whole or in part on the criminal background information. Approved: 10/29/2014 Vice Chancellor, Human Resources Date 6