Ban the Box Moves the Question, It Does Not Remove It — and the Only Penalty a Private Minnesota Employer Faces for Asking Too Early Is an Administrative Fine

Three separate bodies of law, and they do different jobs

A Minnesota job applicant with a record is usually reading about one statute when three are in play, and each answers a different question.

• Minn. Stat. ch. 364 answers when the question may be asked and, for public employment and occupational licensing, what a conviction may be used to decide.
• Minn. Stat. ch. 13C answers what the employer must tell you before and after pulling a report from a reporting agency, and supplies a private remedy.
• The federal Fair Credit Reporting Act, 15 U.S.C. §§ 1681 and following, answers the same disclosure question on federal terms, plus what the agency may put in the report in the first place.

Chapter 364 contains eleven sections — §§ 364.01, 364.02, 364.021, 364.03, 364.04, 364.05, 364.06, 364.07, 364.08, 364.09, and 364.10 — and only one of them, § 364.021, imposes a duty on a private employer. One more, § 364.06, subd. 2, says what happens when that duty is broken. The other nine are about public employment and occupational licensing.

The timing rule, in full

Section 364.021 is four paragraphs long. Paragraph (a):

A public or private employer may not inquire into or consider or require disclosure of the criminal record or criminal history of an applicant for employment until the applicant has been selected for an interview by the employer or, if there is not an interview, before a conditional offer of employment is made to the applicant.

Three verbs, and they are not the same: inquire into, consider, and require disclosure of. An employer that never asks but runs a check anyway and weighs the result has “consider[ed]” it.

The section then carves out three things. Paragraph (b): “This section does not apply to the Department of Corrections or to employers who have a statutory duty to conduct a criminal history background check or otherwise take into consideration a potential employee’s criminal history during the hiring process.” Paragraph (c): “This section does not prohibit an employer from notifying applicants that law or the employer’s policy will disqualify an individual with a particular criminal history background from employment in particular positions.” Paragraph (d) extends a parallel restriction to appointments to multimember state bodies.

What “conviction of crime or crimes” means inside chapter 364

The chapter defines its own vocabulary in § 364.02, and one definition does real work. Subdivision 5:

“Conviction of crime or crimes” shall be limited to convictions of felonies, gross misdemeanors, and misdemeanors for which a jail sentence may be imposed. No other criminal conviction shall be considered.

Section 364.04 then removes three categories from public-employment and licensing use entirely:

(1) Records of arrest not followed by a valid conviction.

(2) Convictions which have been, pursuant to law, annulled or expunged.

(3) Misdemeanor convictions for which no jail sentence can be imposed.

For public employment and licensing, § 364.03, subd. 2, gives the three factors the hiring or licensing authority “shall consider” in deciding whether a conviction directly relates: the nature and seriousness of the crime; its relationship to the purposes of regulating the position or occupation; and its relationship “to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the position of employment or occupation.”

Chapter 364 also announces that it outranks other law on this subject. Section 364.07: the chapter’s provisions “shall prevail over any other laws and rules which purport to govern the granting, denial, renewal, suspension, or revocation of a license or the initiation, suspension, or termination of public employment on the grounds of conviction of a crime or crimes.” Two sections then take large categories back out: § 364.08 excludes “the practice of law or judicial branch employment,” and § 364.09 removes a long list of licensing and hiring processes. Paragraph (a) names, in one sentence, “the licensing process for peace officers,” law enforcement agencies as defined in § 626.84, subd. 1(f), fire protection agencies, private detective and protective agent licensure, “the licensing and background study process under chapters 245A and 245C,” “the licensing and background investigation process under chapter 240,” school bus driver endorsements, special transportation service endorsements, commercial driver training instructor licensure, emergency medical services personnel, and “the licensing by political subdivisions of taxicab drivers” — and then attaches a condition to that sentence: the exclusion applies “if the applicant for the license has been discharged from sentence for a conviction within the ten years immediately preceding application of a violation of any of the following,” followed by three clauses. Clause (1) lists section ranges by number: “sections 609.185 to 609.2114, 609.221 to 609.223, 609.342 to 609.3451, or 617.23, subdivision 2 or 3; or Minnesota Statutes 2012, section 609.21”. Clause (2) reaches “any provision of chapter 152 that is punishable by a maximum sentence of 15 years or more.” Clause (3) reaches “a violation of chapter 169 or 169A involving driving under the influence, leaving the scene of an accident, or reckless or careless driving.” A separate sentence, carrying no ten-year condition, provides that the chapter “also shall not apply to eligibility for juvenile corrections employment, where the offense involved child physical or sexual abuse or criminal sexual conduct.” Paragraph (b) is unconditional: the chapter “does not apply to a school district or to eligibility for a license issued or renewed by the Professional Educator Licensing and Standards Board or the commissioner of education.” Paragraphs (d) through (g) exclude four more licensing tracks — medicine, chiropractic, nursing, and several credentials issued by the commissioner of health — and paragraph (h) adds a general one: the chapter “does not supersede a requirement under law to conduct a criminal history background investigation or consider criminal history records in hiring for particular types of employment.” § 364.09(h).

The rehabilitation showing changed in 2026, and the revisor has not posted it yet

Section 364.03, subd. 3, is the applicant’s affirmative route in public employment and licensing. The 2025 Minnesota Statutes as posted open paragraph (a) this way:

A person who has been convicted of a crime or crimes which directly relate to the public employment sought or to the occupation for which a license is sought shall not be disqualified from the employment or occupation if the person can show competent evidence of sufficient rehabilitation and present fitness to perform the duties of the public employment sought or the occupation for which the license is sought.

Laws 2026, ch. 97, art. 9, § 2, rewrites that sentence and the paragraph that follows it. In the enrolled act’s strike-and-insert markup, “shall not” is struck and “may” inserted; “if” is struck and “unless” inserted; and the showing becomes a conjunction — the act inserts the word “both:” and numbers the two elements “(1)” competent evidence of sufficient rehabilitation and “(2)” present fitness to perform the duties. The old paragraph (b), which began “In addition to the documentary evidence presented, the licensing or hiring authority shall consider any evidence presented by the applicant regarding:”, is struck in its entirety and replaced by a new paragraph (b) opening “In determining whether the person has demonstrated both” competent evidence of sufficient rehabilitation “and present fitness to perform the relevant duties, the hiring or licensing authority” may “consider:” — followed by an eight-clause list that folds the old documentary items and the old evidentiary factors into one set of things the authority may weigh. The words “be established by the production of” are struck. One item is added outright: clause (8) now names “proof that the person has completed a treatment program and” letters of reference.

The direction of the change is visible in the words that matter. Under the posted text a qualifying applicant “shall not be disqualified” on a sufficient showing, and “[c]ompetent evidence of sufficient rehabilitation may be established by the production of” the DD-214 or the release-order package. Under the act the applicant “may” be disqualified “unless” the applicant shows both elements, and those documents become items an authority “may consider.”

Section 2 of that article carries its own effective-date clause: “This section is effective the day following final enactment.” So does § 3, which amends § 364.05, the notification section, principally by specifying that the earliest date to reapply is a date “on which” the person may reapply “with a hiring or licensing authority,” and by rewriting clause (4), which as amended will read: “that the hiring or licensing authority will consider all competent evidence of rehabilitation presented upon reapplication.”

The revisor’s chapter page for chapter 364 carries the banner that the chapter “has been affected by law enacted during the 2026 Regular Session” and lists exactly two changes — “364.03 subd. 3 has been amended by Chapter 97, Article 9, Section 2” and “364.05 has been amended by Chapter 97, Article 9, Section 3.” Revisor Table 2, queried per section, returns a 2026 Regular Session row for § 364.03, subd. 3, and for § 364.05, and no 2025 or 2026 row for § 364.021 or § 364.06. Chapter 97 is S.F. No. 4760. The revisor’s 2026 session-law table records that it was presented to the governor on May 14, 2026, with no veto, and the enrolled act’s own last page records that it was signed by the governor on May 18, 2026. Both sections therefore took effect on May 19, 2026 — the day following final enactment. The block quotation above is the posted 2025 text, which does not yet carry the amendment.

Enforcement: what a private employer actually risks

Section 364.06 splits by employer type.

Public employers. Subdivision 1: complaints or grievances about violations of §§ 364.01 to 364.10 by public employers, and about § 364.021 violations by public appointing authorities, “shall be processed and adjudicated in accordance with the procedures set forth in chapter 14, the Administrative Procedure Act.” And § 364.10 adds a characterization with consequences elsewhere: “Violation of the rights established in sections 364.01 to 364.10 by a public employer shall constitute a violation of a person’s civil rights.”

Private employers. Subdivision 2(a) gives the commissioner of human rights authority to investigate § 364.021 violations and to impose penalties. For violations after December 31, 2014, subdivision 2(c) sets three tiers by headcount:

That exclusivity clause is drawn to § 364.021. It does not speak to chapter 13C, and it does not speak to the FCRA, which reach different conduct — what the employer disclosed, and what the reporting agency reported.

Minnesota’s own consumer-report statute

Chapter 13C is the piece most background-check writing omits. Section 13C.02, subd. 1:

A person may not obtain or cause to be prepared a consumer report on a consumer for employment purposes unless the person clearly and accurately discloses to the consumer that a consumer report may be obtained or caused to be prepared. The disclosure must inform the consumer of the right to request additional information on the nature of the report under subdivision 3. In the case of an investigative consumer report, the disclosure under this subdivision must inform the consumer that the report may include information obtained through personal interviews regarding the consumer’s character, general reputation, personal characteristics, or mode of living.

Subdivision 2 sets the form and adds a mechanism with no federal counterpart: the disclosure “must be in writing and must be provided to the consumer before the consumer report is obtained or caused to be prepared”; where there is a written application, “the disclosure must be included in or accompany the application”; and “[t]he disclosure must include a box that the person may check off and return to receive a copy of the consumer report.” If the box is checked, the employer must ask the preparer for a copy, and “[t]he report must be sent to the consumer by the person preparing the report within 24 hours of providing it to the person requesting the report.” The report to the consumer “must include a statement of the consumer’s right to dispute and correct any errors and of the procedures under United States Code, title 15, sections 1681 to 1681t.” And: “A consumer may not be charged for a report provided under this section.”

Two exceptions in subdivision 4 matter. The section does not apply to “a consumer report to be used for employment purposes for which the consumer has not specifically applied,” or to “a consumer report used for an investigation of a current violation of a criminal or civil statute by a current employee or an investigation of employee conduct for which the employer may be liable, until the investigation is completed.” Read the second one carefully — it is a suspension, not a repeal, and its words are “until the investigation is completed.”

Section 13C.03 adds the state adverse-action duty:

If employment is denied or other adverse action for employment purposes is taken against a consumer wholly or partly because of information contained in a consumer report, the user of the report shall so advise the consumer and notify the consumer of the consumer’s right to receive a copy of the report if a copy was not received pursuant to section 13C.02, subdivision 2. The user of the report shall also give the consumer the name and address of the consumer reporting agency making the report and a notice of the consumer’s right to dispute and correct any errors and of the procedures under United States Code, title 15, sections 1681 to 1681t. Upon written request from the consumer, the consumer reporting agency shall provide a copy of the report to the consumer within five days of receipt of the request. A consumer may not be charged for a report provided under this section.

And chapter 13C, unlike § 364.021, comes with a private door. Section 13C.04: “This chapter may be enforced by the attorney general or the county attorney pursuant to section 8.31 or 325F.70 and the public and private remedies available under those sections apply to this chapter.” Section 8.31, subd. 3a, is where that leads:

In addition to the remedies otherwise provided by law, any person injured by a violation of any of the laws referred to in subdivision 1 may bring a civil action and recover damages, together with costs and disbursements, including costs of investigation and reasonable attorney’s fees, and receive other equitable relief as determined by the court.

The other cross-reference in § 13C.04 is narrower on its own terms: § 325F.70, subd. 3(a), gives a private action to “a consumer injured by a violation of sections 325F.68 to 325F.70, in connection with a sale of merchandise for personal, family, household, or agricultural purposes.”

What the FCRA requires, and where its seven-year rule stops

The federal statute defines the trigger narrowly. “Employment purposes,” 15 U.S.C. § 1681a(h), “when used in connection with a consumer report means a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.” An adverse action includes, § 1681a(k)(1)(B)(ii), “a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee.”

Before the report. Section 1681b(b)(2)(A) bars procuring a consumer report for employment purposes unless:

(i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and

(ii) the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the procurement of the report by that person.

“[A] document that consists solely of the disclosure” is the clause that most employer paperwork fails, and the authorization may sit on that same document. The reporting agency has a parallel duty under § 1681b(b)(1): it may furnish the report only if the user certifies compliance with paragraph (2) and future compliance with paragraph (3), certifies that the information “will not be used in violation of any applicable Federal or State equal employment opportunity law or regulation,” and receives a summary of the consumer’s rights.

Before the decision. Section 1681b(b)(3)(A):

Except as provided in subparagraph (B), in using a consumer report for employment purposes, before taking any adverse action based in whole or in part on the report, the person intending to take such adverse action shall provide to the consumer to whom the report relates —

(i) a copy of the report; and

(ii) a description in writing of the rights of the consumer under this subchapter, as prescribed by the Bureau under section 1681g(c)(3) of this title.

The statute sets no waiting period in words. It requires the copy and the description “before taking any adverse action.” Subparagraph (B) supplies a substitute procedure — a notification within three business days after the action — but subparagraph (C) confines that substitute to an applicant for a position over which the Secretary of Transportation has power to set qualifications and hours under 49 U.S.C. § 31502, or a position subject to state transportation safety regulation, who applied by mail, telephone, computer, or similar means and has had no other interaction with the employer.

After the decision. Section 1681m(a) requires the user to give notice of the adverse action; the name, address, and telephone number of the reporting agency; “a statement that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide the consumer the specific reasons why the adverse action was taken”; and notice of the right to a free copy from that agency within the 60-day period under § 1681j and the right to dispute under § 1681i.

What this page does not do

This page sets out three statutes and how they divide the work. It does not tell you whether a particular disclosure form satisfied § 1681b(b)(2)(A)(i) or § 13C.02, subd. 2, whether a conviction “directly relate[s]” to a public position under § 364.03, subd. 1, or whether an employer’s inquiry came before or after the moment § 364.021 identifies. What is general is the shape of the thing: chapter 364 controls the timing and, in public employment and licensing, the use; chapter 13C and the FCRA control the paperwork around a third-party report; and the private-employer remedy in chapter 364 is, by the statute’s own sentence, exclusive and administrative.

Related: was my firing illegal, your personnel file, drug and alcohol testing at work, and references and what a former employer may say.