Human Resources Guideline & Interpretation

Transcription

1 Human Resources Guideline & Interpretation Criminal Background Checks of Applicants to Work as Security Officer FSR0006 Purpose: This guidance incorporates the process set out in Minnesota Statutes , Subdivision 1 for conducting criminal background checks on applicants for the position of security officer. 1 System colleges and universities shall use this background check process when filling positions for employment to work as security officers. Minnesota Statutes , Subdivision 3(1) lists the convictions which disqualify a person from a position as a security officer. The statute provides that a person is not qualified to be a security officer if the person has been convicted of: i. a felony by the courts of this or any other state or of the United States; ii. iii. acts which, if done in Minnesota, would be criminal sexual conduct; assault; theft; larceny; burglary; robbery; unlawful entry; extortion; defamation; buying or receiving stolen property; using, possessing, manufacturing, or carrying weapons unlawfully; using, possessing, or carrying burglary tools unlawfully; escape; possession, production, sale, or distribution of narcotics unlawfully; or in any other country of acts which, if done in Minnesota, would be a felony or would be any of the other offenses provided in this clause and for which a full pardon or similar relief has not been granted. Affects: 1 Minnesota Statues , Subdivision 1a provides [a] proprietary employer is not required to obtain a license [to engage in the business of private detective or protective agent], but must comply with section , Subdivision 1, with respect to the hiring of security officers. "Proprietary employer" is defined as an individual, partnership, or corporation that is not engaged in the business of providing protective agents but employs individuals to serve as security officers solely on the employer's property and its curtilage. Minn. Stat , Subdivision 10c. Although the obligation was not explicitly imposed on either the State or Minnesota State Colleges and Universities, the system adopts the public policy underlying the background check provisions.

2 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 security officers. Applicants or employees seeking to transfer/bid on a position as a security officer must undergo a criminal background check. Obtaining a criminal background check should be limited to those individuals to whom the institution intends to offer employment. This guidance does not apply to employers of thirds parties, such as instances where an institution contracts with a law enforcement agency or a private company to provide security services for the institution. For purposes of this guideline, the system adopts the definition of "security officer found in Minnesota Statutes , Subd. 13): a person who wears or carries any insignia that identifies the person to the public as security, who is paid a fee, wage, or salary to do one or more of the following: (1) prevent or detect intrusion, unauthorized entry or activity, vandalism, or trespass on private property; (2) prevent or detect theft, loss, embezzlement, misappropriation, or concealment of merchandise, money, bonds, stocks, notes, or other valuable documents or papers; (3) control, regulate, or direct the flow or movements of the public, whether by vehicle or otherwise, to assure protection of private property; (4) protect individuals from bodily harm; or (5) enforce policies and rules of the security officer's employer related to crime reduction to the extent that the enforcement falls within the scope of the security officer's duties. Authoritative References: Minnesota Statutes , Subd. 10c (definition of proprietary employer ) Minnesota Statutes , Subd. 1 (background check process) Minnesota Statutes , Subd. 3 (list of disqualifying convictions) 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 ( This form contains a data practices notice and an authorization by the applicant for the Minnesota Bureau of Criminal Apprehension (BCA) and Federal Bureau of Investigation (FBI) to release private data to the institution. Minn. Stat , Subd. 2. Responsibility for Implementation:

3 The chief human resources officer, in partnership with the hiring manager, is responsible for ensuring that the requirements of this guideline are met. Attachments: None 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 applicants to read, complete, and sign the Notice of Rights (see Required Forms, above). Offers of employment for security officer positions should 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. The institution must submit the background check request to the Minnesota Bureau of Criminal Apprehension (BCA) and the Federal Bureau of Investigation (FBI). A. The request must include a copy of the Notice of Rights and Authorization form, signed by the subject of the background check. B. The institution must provide to the BCA a set of the applicant s fingerprints along with the Notice of Rights and Authorization form signed by the data subject. (Fingerprinting forms and processes are available through campus security offices or through local law enforcement agencies.) The fingerprint card should include the full name, date of birth, and identifying information of the applicant, in addition to the name and address of the individual responsible for making the hiring decision. Institutions should reference Minnesota Statutes on the fingerprint form in the block entitled Reason Fingerprinted. D. The BCA will contact the FBI. After conducting its check and reviewing the report of the FBI, the BCA will notify the employer if the employee was convicted of a disqualifying offense. (Questions regarding the BCA s procedure may be directed to the BCA at ) Part 3. Process for Determining Eligibility.

4 The institution s Human Resources Office has primary responsibility for reviewing and evaluating the criminal background check results in accordance with this procedure. 2 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 a criminal conviction as listed in , subd 3. Applicants with a criminal conviction from the list contained in Minnesota Statutes , Subd. 3 are disqualified from employment. This disqualification is statutory; colleges and universities are not required to make an eligibility determination using the factors set out in Minnesota Statutes Chapter 364. As a matter of system human resources policy, there is a presumption that a person who has been convicted of a crime listed in Minnesota Statutes , Subd. 3 is ineligible for employment as a security officer. In practice, the determination that an individual is disqualified for employment as a security officer if convicted of a Section listed offense is made by the Bureau of Criminal Apprehension; thus colleges and universities are not required to make an eligibility determination using the factors set out in Minn. Stat. Chapter 364. However, institutions should inform the applicant that the application to be employed by the institution, or to accept reassignment to the covered position, has been denied because of the result of the background check and that the applicant has the right to challenge the accuracy and completeness of information contained in the report or record under Minnesota Statutes 13.04, Subdivision 4. C. Applicants with other criminal convictions. Applicants with a criminal conviction other than those from the list contained in Minnesota Statutes , subd. 3 are subject to a determination of eligibility by the college or university. Consideration must first be given to the following: 1) Whether the criminal conviction directly relates to the position sought. 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. 2 Minn. Stat (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.

5 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. 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 security officer employment must be made conditional on

6 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) 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.

7 Approved: 10/29/2014 Vice Chancellor, Human Resources Date