Minnesota's Ban-the-Box Law Is Two Different Statutes Wearing One Chapter Number

Minnesota’s criminal-history hiring law is usually described in one sentence: employers cannot ask about convictions on the application. That sentence is true and it is close to the least useful thing you can know about chapter 364.

The chapter does two entirely different jobs, on two entirely different sets of employers, with two entirely different enforcement schemes. Read it as one statute and you will give a private employer advice meant for a city, or tell a private-sector applicant they have a right they do not have.

Here is the split.

One chapter, two regimes

Every substantive protection in chapter 364 other than § 364.021 is written in the vocabulary of “public employment,” “license,” and “hiring or licensing authority” — terms the chapter defines in § 364.02 and defines narrowly. “Public employment” means “all employment with the state of Minnesota, its agencies, or political subdivisions.” A “hiring or licensing authority” is “the person, board, commission, or department of the state of Minnesota, its agencies or political subdivisions, responsible by law for the hiring of persons for public employment or the licensing of persons for occupations.”

A private Minnesota employer is subject to exactly one section of chapter 364, and it is a timing rule.

§ 364.021: what the timing rule actually says

The full operative sentence, from 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 things worth pulling out.

It is not just the box. The prohibition is on inquiring into, considering, or requiring disclosure. An employer that runs a background check before the interview stage has violated the section even if the application form is clean.

The trigger is selection for an interview, not the interview itself. The clock moves when the applicant “has been selected for an interview,” not when the interview happens.

Where there is no interview, the line is the conditional offer. That is the fallback, and it is the one that governs high-volume hiring processes that skip interviews entirely.

Paragraph (b) exempts the Department of Corrections and “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) preserves an employer’s ability to tell applicants up front what will disqualify them: the 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 the same rule to appointments to multimember public bodies — “boards, commissions, agencies, committees, councils, authorities, advisory task forces, and advisory councils” — barring inquiry “on an application form or, until the applicant has been selected for an interview by the appointing authority or is otherwise selected as a final candidate for appointment.”

The direct relationship standard — public employment and licensing only

This is the heart of chapter 364, and it is the part that does not reach private employers.

Minn. Stat. § 364.03, subd. 1:

“Notwithstanding any other provision of law to the contrary, no person shall be disqualified from public employment, nor shall a person be disqualified from pursuing, practicing, or engaging in any occupation for which a license is required solely or in part because of a prior conviction of a crime or crimes, unless the crime or crimes for which convicted directly relate to the position of employment sought or the occupation for which the license is sought.”

Subdivision 2 then supplies the three-factor test the authority “shall consider” in deciding whether a conviction directly relates:

1. “the nature and seriousness of the crime or crimes for which the individual was convicted”;
2. “the relationship of the crime or crimes to the purposes of regulating the position of public employment sought or the occupation for which the license is sought”;
3. “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 or occupation.”

Note factor (2). It is not a general dangerousness inquiry. It asks how the conviction relates to why the position or occupation is regulated at all — which is a narrower and more disciplined question than most disqualification decisions actually engage.

Section 364.07 gives the standard priority: the chapter “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.” And it closes the “good moral character” workaround: in deciding a license or public employment question “for a lack of good moral character or the like,” the authority may consider conviction evidence “but only in the same manner and to the same effect as provided for in sections 364.01 to 364.10.”

Rehabilitation — and a 2026 change that matters

Even where a conviction does directly relate, § 364.03, subd. 3 gives the applicant a route.

The version in the 2025 Minnesota Statutes provides that a person convicted of a directly related crime “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.” It then says competent evidence “may be established by the production of” an honorable-discharge DD-214 for military service rendered after the conviction, or by (1) a release order plus (2) evidence that at least a year has elapsed since release without subsequent conviction and evidence of compliance with probation or parole terms, or (3) a Department of Corrections discharge order or other documents showing completion of supervision.

And paragraph (b) has, to date, been mandatory: “In addition to the documentary evidence presented, the licensing or hiring authority shall consider any evidence presented by the applicant regarding” the nature and seriousness of the crime; all circumstances including mitigating circumstances or social conditions surrounding it; the applicant’s age at the time; the time elapsed since; and “all other competent evidence of rehabilitation and present fitness presented, including, but not limited to, letters of reference by persons who have been in contact with the applicant since the applicant’s release.”

Subdivision 3 was amended during the 2026 Regular Session, and the amendment is not cosmetic. Under 2026 Minn. Laws ch. 97, art. 9, § 2 — effective the day following final enactment — the mandatory framing is rewritten. “[S]hall not be disqualified . . . if the person can show” becomes “may be disqualified from the employment or occupation unless the person can show both: (1) competent evidence of sufficient rehabilitation; and (2) present fitness to perform the duties.” The documentary items and the applicant’s other evidence are merged into a single eight-item list introduced by what the hiring or licensing authority “may consider” — replacing the separate paragraph (b) that the authority “shall consider.” The list adds “proof that the person has completed a treatment program” to the catch-all.

The practical shift is from a duty to consider the applicant’s rehabilitation evidence to a permission to consider it. Anyone advising on a licensing denial should read the current text of § 364.03, subd. 3 rather than a summary — including this one — because the operative verbs changed.

Paragraph (c) survives unchanged: a DD-214 “ceases to qualify as competent evidence of sufficient rehabilitation” once the person is convicted of a gross misdemeanor or felony committed after the discharge.

The written explanation — § 364.05

This is the provision that converts a hiring judgment into a documented one, and it is the one most often assumed to apply to private employers. It does not.

“If a hiring or licensing authority denies an individual a position of public employment or disqualifies the individual from pursuing, practicing, or engaging in any occupation for which a license is required, solely or in part because of the individual’s prior conviction of a crime, the hiring or licensing authority shall notify the individual in writing of the following: (1) the grounds and reasons for the denial or disqualification; (2) the applicable complaint and grievance procedure as set forth in section 364.06; (3) the earliest date the person may reapply for a position of public employment or a license; and (4) that all competent evidence of rehabilitation presented will be considered upon reapplication.”

Four items, in writing, every time. Section 364.05 was also amended by 2026 Minn. Laws ch. 97, art. 9, § 3, effective the day following final enactment; the changes are clarifying — clause (3) becomes “the earliest date on which the person may reapply for a position of public employment or a license with a hiring or licensing authority,” and clause (4) is recast as “that the hiring or licensing authority will consider all competent evidence of rehabilitation presented upon reapplication.” The four required disclosures are unchanged.

The reason this section matters out of proportion to its length: an authority that must state grounds in writing, name the reapplication date, and commit to considering rehabilitation cannot resolve the question with an unexplained “we went another direction.” The writing is the enforcement mechanism, because it is what a chapter 14 proceeding under § 364.06, subd. 1 will be about.

Records that may not be used at all

Section 364.04 removes three categories from the public-sector process entirely. The state, its agents, and political subdivisions may not use, distribute, or disseminate, in connection with an application for public employment or a license:

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.”

That third category dovetails with the definition in § 364.02, subd. 5: “Conviction of crime or crimes” is “limited to convictions of felonies, gross misdemeanors, and misdemeanors for which a jail sentence may be imposed. No other criminal conviction shall be considered.”

Enforcement: two systems, and one of them is small

Public. Section 364.06, subd. 1: complaints or grievances concerning violations “by public employers” — and violations of § 364.021 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: “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. Section 364.06, subd. 2 gives the commissioner of human rights authority to investigate violations of § 364.021 by a private employer and to impose penalties. For violations after December 31, 2014, the penalties are graduated by employer size:

And then paragraph (d), which is the most consequential sentence in the section:

“The remedies under this subdivision are exclusive. A private employer is not otherwise liable for complying with or failing to comply with section 364.021.”

There is no private right of action against a private employer under chapter 364, and no damages remedy. An applicant who was asked about convictions on the application form has an agency complaint, not a lawsuit.

The exemptions are long, and they are the first thing to check

Two sections take large categories out of the chapter.

Section 364.08 removes “the practice of law or judicial branch employment,” while noting that nothing precludes the supreme court “in its discretion, from adopting the policies set forth in this chapter.”

Section 364.09 is longer. Paragraph (a) excludes, among others, the peace officer licensing process; law enforcement agencies as defined in § 626.84, subd. 1(f); fire protection agencies; private detective and protective agent licensing; the licensing and background study process under chapters 245A and 245C; the licensing and background investigation process under chapter 240; school bus driver and special transportation endorsements; commercial driver training instructor licensing under § 171.35; emergency medical services personnel; and locally licensed taxicab drivers — but the exclusion for that list is conditioned: it applies “if the applicant for the license has been discharged from sentence for a conviction within the ten years immediately preceding application” of an enumerated violation, including §§ 609.185 to 609.2114, 609.221 to 609.223, 609.342 to 609.3451, or 617.23, subd. 2 or 3; certain chapter 152 offenses punishable by a maximum of 15 years or more; and chapter 169 or 169A violations “involving driving under the influence, leaving the scene of an accident, or reckless or careless driving.”

Paragraph (b) excludes school districts and educator licensing. Paragraphs (d) through (g) exclude specified denials and revocations by the Board of Medical Practice, the chiropractic board, the Board of Nursing, and the commissioner of health. And paragraph (h) is the catch-all that matters most in practice: 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.”

Where federal law picks up what chapter 364 puts down

For the private-sector applicant, the meaningful notice right and the only damages remedy come from the Fair Credit Reporting Act, and only when the employer used a third-party background check. The two regimes stack; they do not overlap.

Before the report is obtained. Under 15 U.S.C. § 1681b(b)(2)(A), a person may not procure a consumer report for employment purposes unless “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 the consumer “has authorized in writing” the procurement. The standalone-document requirement is exacting and is the single most litigated technical defect in employment background screening.

Before the adverse action. Under 15 U.S.C. § 1681b(b)(3)(A), “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.” That is the pre-adverse-action notice. Its function is to give the applicant a window to see the report and dispute an error before the decision becomes final.

“Adverse action” is defined to cover hiring. 15 U.S.C. § 1681a(k)(1)(B)(ii): “a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee.”

After the adverse action. Under 15 U.S.C. § 1681m(a), the user must notify the consumer of the adverse action; provide the name, address, and telephone number of the consumer reporting agency that furnished the report; state that the agency “did not make the decision to take the adverse action and is unable to provide the consumer the specific reasons why”; and notify the consumer of the right to a free copy of the report from that agency under § 1681j, “which notice shall include an indication of the 60-day period under that section,” and of the right to dispute accuracy or completeness under § 1681i.

Two FCRA details specific to criminal records are worth knowing.

First, the FCRA’s seven-year lookback does not limit conviction reporting. Section 1681c(a)(5) excludes from consumer reports “[a]ny other adverse item of information, other than records of convictions of crimes which antedates the report by more than seven years.” Arrest records that did not result in conviction are covered by the seven-year rule at § 1681c(a)(2); convictions are carved out of the limitation.

Second, § 1681c(b)(3) makes the paragraph (a)(1)–(5) limits inapplicable altogether where the report is used in connection with “the employment of any individual at an annual salary which equals, or which may reasonably be expected to equal $75,000, or more.”

And, unlike chapter 364, the FCRA has teeth. Under 15 U.S.C. § 1681n(a), a person who willfully fails to comply is liable for actual damages “or damages of not less than $100 and not more than $1,000,” “such amount of punitive damages as the court may allow,” and, on a successful action, “the costs of the action together with reasonable attorney’s fees.” Under § 1681o(a), negligent noncompliance carries actual damages plus costs and reasonable attorney’s fees.

The two regimes side by side

An employer who ran the background check at the right moment under § 364.021 and then rejected the applicant without the § 1681b(b)(3) pre-adverse-action notice has complied with Minnesota law and violated federal law. The compliance calendar has two independent entries.

What to do

If you are an employer:

• Take criminal-history questions off the application, and off the pre-interview screen. Section 364.021 reaches inquiry, consideration, and required disclosure.
• Fix the trigger in your process. The line is selection for an interview, or — where there is no interview — the conditional offer.
• Check § 364.09(h) before assuming you are exempt. A statutory duty to run a background check is the exemption; a preference for running one is not.
• If you are a public employer or licensing authority, put the § 364.03 analysis in writing. The three direct-relationship factors and, on denial, the four § 364.05 disclosures.
• Use the current text of § 364.03, subd. 3. It was amended in 2026, and the mandatory-consideration language changed.
• Keep the FCRA disclosure on its own page. Section 1681b(b)(2)(A)(i) requires “a document that consists solely of the disclosure.”
• Build in the pre-adverse-action step. Copy of the report plus the written summary of rights, before the decision — then the § 1681m(a) notice after.

If you are an applicant:

• A question about convictions on an application form is a chapter 364 problem, but the remedy differs by employer. Against a public employer, chapter 14 and § 364.10. Against a private employer, a complaint to the commissioner of human rights — and § 364.06, subd. 2(d) forecloses more.
• Ask whether a third-party background check was used. If it was, the FCRA applies, and the FCRA is where an applicant has a court remedy.
• Keep the pre-adverse-action letter. The copy of the report and the summary of rights are what let you find and dispute an error before the job is gone.
• In a public or licensing case, build the rehabilitation record. Section 364.03, subd. 3 lists what counts, and § 364.05 requires the authority to tell you when you may reapply.
• Check whether the record should be there at all. Section 364.04 removes arrests without conviction, expunged or annulled convictions, and non-jailable misdemeanors from the public-sector process.

The observation

The conventional summary of chapter 364 — “Minnesota bans the box” — describes the one provision that applies to everyone and ignores the structure around it.

What Minnesota actually did was separate the two questions. For everyone, it moved the timing: an employer may not learn about a conviction until the applicant is a person rather than a form. For the public sector, it went further and regulated the decision itself — the conviction must directly relate to the job, the applicant may prove rehabilitation, and the authority must explain a denial in writing.

For the private sector, it stopped at timing, and said so twice: once by writing every substantive section in the language of public employment and licensing, and once by making the § 364.06, subd. 2 penalties exclusive.

Which is why the honest advice to a Minnesota private-sector applicant is not really about chapter 364. The moment the employer pays a vendor to pull the record, the governing law becomes federal, and with it a right to see the report before the decision, a right to dispute it, statutory damages for a willful violation, and a fee-shifting provision. Chapter 364 changed the order of the questions. The FCRA is what requires anyone to show their work.

Madgett Law, LLC represents Minnesota consumers and job applicants in Fair Credit Reporting Act matters — including background-check errors, missing pre-adverse-action notices, and disputes with consumer reporting agencies — and advises on Minnesota employment and licensing questions under chapter 364. If a background check cost you a job offer, the report itself and the letters you received are the place to start. Send us a message or call 612-470-6529.

Related reading: Minnesota Gives a Fired Employee 24 Hours’ Leverage. Most Employers Do Not Know the Clock Exists.

Sources: Minn. Stat. ch. 364 (Criminal Offenders; Rehabilitation), including § 364.01 (policy); § 364.02, subds. 2–6 (definitions of occupation, license, public employment, conviction of crime or crimes, and hiring or licensing authority); § 364.021, paras. (a)–(d) (public and private employment; consideration of criminal records; the interview / conditional-offer line; the Department of Corrections and statutory-duty exemptions; notice of disqualifying policies; multimember agency appointments); § 364.03, subds. 1–3 (relation of conviction to employment or occupation; the direct-relationship standard and its three factors; evidence of rehabilitation); § 364.04 (availability of records; arrests without conviction, expunged or annulled convictions, non-jailable misdemeanors); § 364.05 (notification upon denial of employment or disqualification from occupation; four required written disclosures); § 364.06, subds. 1–2 (violations; chapter 14 procedures for public employers; commissioner of human rights investigation and graduated penalties for private employers; exclusive remedy at subd. 2(d)); § 364.07 (application; priority over other laws; “good moral character”); § 364.08 (practice of law and judicial branch exception); § 364.09, paras. (a)–(h) (exceptions); and § 364.10 (violation of civil rights by a public employer). Also 15 U.S.C. § 1681a(k)(1)(B)(ii) (definition of “adverse action” for employment); § 1681b(b)(1)–(3) (conditions for furnishing and using consumer reports for employment purposes; standalone written disclosure and written authorization; pre-adverse-action copy of the report and written summary of rights); § 1681c(a)(2), (a)(5), and (b)(3) (information excluded from consumer reports; the conviction carve-out from the seven-year limit; the $75,000 salary exemption); § 1681m(a)(1)–(4) (duties of users taking adverse actions); § 1681n(a) (civil liability for willful noncompliance; $100–$1,000 statutory damages, punitive damages, costs and fees); and § 1681o(a) (civil liability for negligent noncompliance). Minnesota statutes retrieved from the Minnesota Office of the Revisor of Statutes, 2025 Minnesota Statutes edition, at revisor.mn.gov; federal statutes retrieved from the Legal Information Institute, Cornell Law School. Currency note: the Revisor’s chapter 364 banner states that the chapter “has been affected by law enacted during the 2026 Regular Session,” identifying amendments to § 364.03, subd. 3 (2026 Minn. Laws ch. 97, art. 9, § 2) and § 364.05 (2026 Minn. Laws ch. 97, art. 9, § 3). Both were retrieved and read; each is effective the day following final enactment, and the substantive change to § 364.03, subd. 3 is described above. Section 364.021 and § 364.06 were last amended in 2023 (2023 c 52 art 19); § 364.09 in 2017. This article is general legal information about Minnesota and federal law, not legal advice, and reading it does not create an attorney–client relationship. Whether a particular employer, position, or record falls inside or outside chapter 364 turns on facts and exemptions this article does not know. No outcome is promised or implied.