There are a number of methods available for an employer to recruit job applicants in Minnesota, including, but not limited to, the following:
Advertisements designed to attract candidates, whether designed for traditional media, the Internet or social network apps, should be drafted carefully to avoid any indication of discrimination. Advertisements that are drafted carelessly, even unintentionally, may give rise to claims of discrimination under the Minnesota Human Rights Act (MHRA) and/or other applicable federal laws (such as Title VII of the Civil Rights Act of 1964, as amended) if the advertisements refer to a protected class such as race, religion, gender, sexual orientation, national origin, age or disability.
For instance, an advertisement seeking “recent college graduates” or “young and energetic” people likely would be found to have a discriminatory effect against older persons. Similarly, language in an advertisement that specifies a physical ability required for the job (even something as seemingly innocent as a clear-speaking voice or language proficiency) may be found to discriminate against disabled persons or persons from certain ethnic minorities. When using the Internet to advertise, consideration should be given to the possible applicability of laws in other states that might limit the scope of permissible content in a job posting.
As a result, when preparing a job advertisement, an employer should clearly and concisely describe the position and any qualifications for the position without making reference to attributes that are usually associated with a protected class (e.g., race, gender, etc.). It is also generally a good idea to include a statement in the advertisement that the employer is an “Equal Opportunity Employer."
Once the need for new employees is established, one of the most important aspects of screening and selecting a new employee is to develop a job description that clearly defines the essential requirements and functions of the position. This may be of particular importance in cases involving applicants who have disabilities, because a job description that predates the applicant’s application is evidence that the job requirement is not a pretext to exclude the particular disabled individual. For this reason, it is also useful to include a description of the working conditions, especially if they involve factors difficult to accommodate, such as exposure to ambient temperatures, limited ability to sit down, limited ability or difficulty accessing restrooms or other conditions that might serve to disqualify applicants with particular disabilities for legitimate, non-discriminatory reasons. In addition to the obvious purpose of identifying the employer’s hiring needs, the job description performs an important legal function by providing an objective standard by which a prospective employee’s qualifications can be measured. Provided the standards are lawful and are applied in an even-handed manner, a prospective employee who does not meet the stated standard typically will not have a basis for a claim of unlawful discrimination. The job description also becomes an important document in the event of a dispute between the employer and the employee and should be maintained in the permanent employment record. Job descriptions should be reviewed on an annual basis, as duties change and technology can affect the physical demands.
Minnesota law does not require an employer to use an employment application. However, the employment application is a good starting point for finding the most qualified candidates for the job. Further, a good employment application allows employers to compare multiple applicants across the same range of qualifications (such as educational level, workplace experience or particular skills) when performing initial screening and such comparison is based on a uniform application. Whether the employer uses an application or some other means of collecting information, an employer must seek only information that is required for the position or positions for which the individual is applying. Additionally, under Minnesota law, an employer may not ask an applicant certain questions in the application process which would result in the disclosure of the person’s race, religion, national origin, public assistance, sex, color, marital status, sexual orientation, familial status, age, creed, or disability. Moreover, under Minnesota law, an employer cannot ask applicants about their criminal background history prior to an initial interview.
Under the Americans with Disabilities Act (ADA), which is discussed in more detail in Chapter 13: Disabilities and reasonable accommodation, employers must provide an equal opportunity for disabled applicants to participate in the application process. Employers that are subject to the ADA must make reasonable accommodations that allow for disabled applicants to complete an employment application. These reasonable accommodations need not be made in advance, and can be made simply upon request by an applicant. Examples of reasonable accommodations that allow a disabled applicant to complete a job application would include things such as providing the job information and application in an accessible location, or providing the job description and application in large-print or electronic formats.
Generally, an employment application should contain the following information:
If an employer chooses to use an employment application, the employer should ask if the applicant is legally eligible for employment in the United States. Additionally, an employment application should indicate that it is not an offer of employment or a contract, and that, if hired, the employment will be “at-will” subjecting the employee to termination at any time for any reason in the absence of a written agreement to the contrary. The application should also include a statement that the employer is an Equal Opportunity Employer and will not unlawfully discriminate. It is also very helpful to include a statement such as the following just above where the applicant is expected to sign the application form:
I hereby certify that all of the information provided by me in this application and any accompanying resume is correct, accurate and complete to the best of my knowledge. I understand that the falsification, misrepresentation or omission of any facts will be cause for denial of employment or termination from employment if discovered later.
There is some information that an employer should avoid asking on an employment application or through any other means of communicating with a prospective employee unless the request is for:
Absent any of these enumerated exceptions, the following topics should be avoided because inquiries on these topics are prohibited under the Minnesota Human Rights Act (MHRA) and federal law and could lead to claims of discrimination by prospective employees. These topics include:
Unless required by federal or state law, Minnesota employer cannot ask about an applicant’s criminal record or conduct a criminal background check until later in the hiring process, i.e., at the interview stage or when a conditional job offer has been extended. As explained by the Minnesota Department of Human Rights (MDHR), this “ban the box” law “is designed to provide job candidates with an arrest or conviction with more opportunities to be evaluated on their skills and experience when applying for positions” with employers. Additional rationale for this legislation is to provide applicants with convictions a better chance at employment. The legislation is also designed to address employment disparities among people within ethnic groups who have criminal records and to expand a shrinking workforce within the State of Minnesota.
According to the statute, an employer may not inquire as to an applicant’s criminal history until the applicant has been selected for an interview. In other words, the statute permits an employer to inquire about an applicant's criminal history after the employer has selected the applicant for an interview. In practice, this inquiry should be made writing and, among other things, should identify the date of the inquiry and the date of the interview to demonstrate that the employer is abiding by this statutory requirement. In addition, an employer should state on the initial application that it is the law and the employer’s policy (as may be applicable) to disqualify an individual with a history of certain criminal activity from employment in certain positions.
Employers may still exclude a candidate with a criminal history but, to be statutorily compliant, must wait until those later stages of the application process to do so.
This requirement applies to public and private employers, but it specifically excludes the Department of Corrections or employers who have a statutory duty to conduct a criminal background check or otherwise take into consideration a potential employee’s criminal history during the hiring process.
The interview is an extremely important part of the recruiting and hiring process because it enables an employer to convey important information about its operations and to learn valuable, first-hand information regarding an applicant for employment. However, to avoid potential discrimination claims, it is crucial that an employer understand what types of questions should and should not be asked during an interview.
In light of the beneficial information that can be obtained about an applicant during a properly conducted interview, as well as the potential legal claims that can result from an improperly conducted interview, employers should centralize the interviewing function to the extent possible and allow only trained individuals, such as a human resources professional, to conduct an effective and appropriate interview. Employers that do not have the luxury of centralizing interview responsibilities with a full-time human resources professional or other high-level company employee should conduct training and develop and distribute checklists to those employees who interview applicants. This ensures that the interviewers will be aware of the kinds of inquiries that are proper, as well as those that are not permissible, in an interview setting.
An interviewer should focus on questions that are related to the applicant’s skills and qualifications, and how those skills and qualifications relate to the requirements of the job. To conduct an effective interview, the interviewer must be familiar with:
By reviewing these documents and information prior to the interview, the interviewer can be sure to ask specific and focused questions designed to obtain information regarding an applicant’s employment history and job qualifications to determine if the applicant is a good fit for the position.
Many employers find it helpful to develop structured interview formats so that all applicants for a particular job are asked an identical set of questions against which they can be evaluated. This reduces the likelihood of discrimination claims in three ways. First, it makes it less likely that disappointed applicants can prove questions were tailored to them on the basis of any protected characteristic. Second, it increases the likelihood that the employer can point to specific comparative reasons why it preferred one candidate over another. Third, it enables more meaningful comparisons between applicants to be made even if the same persons cannot participate in all of the interview sessions.
During the interview, the interviewer should feel free to take notes regarding the applicant’s responses to questions and qualifications. Employers may make notes about an applicant’s interpersonal communication skills, attitude and other subjective factors concerning the applicant’s ability to perform the job in question. However, employers should be careful about the type of notes they write down concerning an applicant because those notes likely will be subject to disclosure in any later lawsuit or charge of discrimination. Notes relating directly or indirectly (through codes) to an applicant’s protected class (for example, age, race, religion, sex, national origin or disability, etc.) are unlawful and must be avoided unless the characteristic in question is a BFOQ. Only factors relevant to an applicant’s ability to perform the job should be considered and/or recorded during the hiring process. See the discussion of BFOQ in Chapter 12: Discrimination.
Remote hiring and interviewing has become increasingly common. Some special considerations when conducting remote interviews include:
Here are some sample interview questions that address sensitive issues that may be protected under federal or state law. Both improper and proper forms of the questions are provided.
The Minnesota Human Rights Act (MHRA) and the Americans with Disabilities Act (ADA) prohibit an employer from asking about the existence, nature or severity of a disability and may not conduct medical examinations until after it makes a conditional job offer.
Examples of improper questions:
Prior to making a job offer, an employer may not ask whether the applicant needs reasonable accommodation for the job.
Would you need reasonable accommodation in this job or to perform this specific function? An employer is also prohibited from asking a third party or a reference anything that the employer is prohibited from asking the applicant directly.
Inquiry may be made into applicant’s membership in job-related organizations that the employer considers relevant to the ability to perform the job (e.g., an employer may ask applicants if they have held any positions of leadership relevant to their ability to perform the job).
Employers should be aware of their potential liability for negligent hiring and/or retention when their employees cause injuries to third parties. Under Minnesota law, an employer has an obligation to use reasonable care in selecting and retaining employees. This obligates an employer to hire and retain only safe and competent employees. By hiring or retaining an employee that the employer knows or should know is unfit or poses a danger to others, the employer violates this duty.
Negligent hiring has been described by the Minnesota Supreme Court as:
“the negligence of an employer in placing a person with known propensity or propensities that should have been discovered by reasonable investigation in an employment situation in which because of the circumstances of the employment it should have been foreseeable that the hired individual posed a direct threat of injury to others.”
If an employer fails in its duties to exercise reasonable care in employee hiring or retention, the employer can be liable for damages caused.
In order for employers to meet their duty of reasonable care when hiring an employee, it is important that employers perform reasonable investigations of their employees during the hiring process to ensure that each employee’s past does not indicate a tendency that would render the employee unsuitable for the position. The nature and responsibilities of the position, the thoroughness of the investigation, and the extent of prior conduct indicating relevant tendencies will often determine the employer’s liability when an employee harms a third party. Employers must be mindful that certain positions will require more thorough investigations based on the level of responsibility and potential for injury. Keeping in mind the employee’s level of responsibility and potential to injure others while performing duties, the employer should seriously consider conducting background checks to investigate references, job history, criminal and driving records, and credit standing.
The adequacy of the employer’s investigation will be evaluated based on:
The employer should be detailed and accurate in documenting its investigative practices and policies in order to demonstrate a record of consistent use of reliable and adequate information in its hiring and retention decisions. Employers that conduct background checks on applicants must comply with the requirements of the Fair Credit Reporting Act (FCRA). For more information see Chapter 04: Background checks.
In addition, prompt and consistent investigation and discipline in the case of employee misconduct can also help shield employers from liability for negligent hiring and retention. By taking prompt and consistent measures, the employer demonstrates its concern for maintaining qualified and competent employees. Should an employer face a negligent hiring or retention claim, the employer would be able to point to a record of its history of taking employee misconduct seriously, thereby demonstrating its ability to discover certain propensities if possible to do so.
Most employers think of non-compete agreements or other post-employment restrictive covenants as subjects to be considered only in the context of protecting their companies from unfair competition by others. An employer should always be aware of the potential risk that the person being hired may have some restrictions from prior employment. Consideration should be given in the hiring process to whether the applicant is under valid restrictions that would affect the individual’s suitability for the job. The failure to address legitimate restrictions could result in having the new employer dragged into court as a defendant in a claim for unlawfully interfering with the prior employer’s contractual rights. If the employee is enjoined from working for the new employer, the new employer will have wasted valuable time and money. Even worse, for the new employer, it could be forced to indemnify the employee if its corporate bylaws require it to do so. For a fuller discussion, see Chapter 08: Noncompete agreements and trade secrets.
At the pre-offer stage, an employer may not ask medical-related and/or disability-related questions nor may an employer require a job applicant to have a medical examination. However, an employer can require a physical agility test as long as it is done at the employer’s expense and given to all similarly situated applicants regardless of disability. A test that screens out individuals with disabilities must be job-related. Under no circumstances should an employer utilize any pre-employment medical test that analyzes human DNA, RNA, chromosomes, proteins or metabolites that detects genotypes, mutations or chromosomal changes.
At the post-offer stage, an employer may make medical inquiries and conduct medical examinations (again, at its expense) to get any information it believes to be relevant to an applicant’s ability to perform a job. In order to conduct a medical examination under Minnesota law, the employer must first make the applicant a conditional job offer and establish that the condition for employment is that the applicant meets the physical or mental requirements of the job. This condition must be imposed on all entering employees in the same job category. The post-offer medical examination must test only for essential, job-related abilities, and it may not include genetic testing, inquiries into applicant’s family’s medical history, or the results of any genetic tests. If an individual is not hired because a post-offer medical exam reveals that the applicant has a disability, the reason for not hiring that individual must either:
The employer also must show that no reasonable accommodation was available that would have enabled this individual to perform the essential job functions.
An employee’s medical information, including the results of any physical examinations, must be kept confidential. The Americans with Disabilities Act (ADA) has narrow exceptions for disclosing limited information to supervisors and managers, first aid and safety personnel, and government officials investigating compliance with the ADA. While the ADA permits an employer to use medical examinations and inquiries, there are strict limitations on the use of information obtained from such examinations and inquiries. All information obtained from post-offer medical examinations and inquiries must be collected and maintained on separate forms.
An employer may decide to use a pre-employment test as a way to predict the future job performance of an applicant. While these tests are legal, employers should still exercise extreme caution if the employer decides to use these tests. For example, pre-employment tests must be nonmedical in nature. Further, any pre-employment tests that tend to screen out individuals with disabilities may constitute discrimination under the ADA unless they are job-related and necessary for the business. Tests must accurately reflect the skills, aptitude, or other factors being measured and not the impaired manual, speaking, or sensory skills of an applicant with a disability (unless those are the skills the test is designed to measure). For example, a psychological test is permitted as long as its purpose is to measure honesty, habits, or other traits of an individual applicant not associated with a medical condition. A skills test also is permissible as long as the testing is related to the essential functions of the particular job. For example, an applicant for a typist position can be given a typing test, or a truck driver can be given a road test. The testing may have to be administered with the kinds of accommodations that the employee may need to perform the job.
Employers often use scored tests to assist in making hiring decisions. Scored tests include paper-and-pencil tests or other scored measures that aim to evaluate an applicant’s knowledge, skill, or ability level. Private employers commonly use these tests to measure not only cognitive ability, but also to assess personal characteristics such as integrity, self-initiative, conscientiousness, and responsibility.
The scores of these tests can be used in a variety of ways. For example, scores can be used to rank candidates, for screening purposes to determine which candidates meet a predetermined minimum level of qualifications, or as one objective piece of information to be considered with all the other available relevant information.
Title VII of the Civil Rights Act of 1964 (Title VII) specifically authorizes employers to use professionally developed scored tests, and there are a host of companies marketing tests for various types of jobs. These professionally developed tests, however, must be job-related and cannot show bias towards any race, color, sex, religion, age, disability, or other protected class. Further, both Minnesota and federal law prohibits employers from limiting, segregating, or classifying employees in a way that discriminates against individuals.
If the use of any test results in a disparate
impact against members of a protected group, the employer may face liability under the discrimination laws unless the employer can show that the test has been properly validated and is consistent with business necessity. See Chapter 12: Discrimination.
Under the ADA and the Minnesota Human Rights Act (MHRA), the duty to accommodate disabilities exists in the development, administration and scoring of pre-employment tests. The ADA and MHRA require employers to select and administer pre-employment tests in a way that ensures individuals with disabilities have a fair opportunity to demonstrate the job-related skills the tests seek to measure. Employers must offer reasonable accommodations to disabled applicants to enable them to demonstrate their qualifications during the hiring process. However, an employer does not have to provide an applicant a reasonable accommodation or alternative method of testing if the pre-employment test is measuring skills necessary to perform an essential function of the job, so long as such test is uniformly administered for all applicants seeking the same position.
An employer is allowed to request, in its test announcement or application form, that individuals should inform the employer within a specified amount of time before the test period if they require a reasonable accommodation in order to take the test. The employer is also permitted to request documentation of the need for the requested accommodation if the disability is not readily obvious (such as visual or hearing impairments). The employer then may seek independent verification of the need rather than rely solely on the individual’s treating physician. However, should the applicant fail to notify the employer of a need for the accommodation before the test, the employer is still responsible to provide a reasonable accommodation if the employer becomes aware of the need during the test administration. Because an employer must make a reasonable accommodation for a qualified individual’s known physical or mental limitations, the duty of determining whether an employer needs to make a reasonable accommodation is not triggered until there is a request from the applicant.
The testing accommodations must be geared to the particular individual’s needs. For example, an applicant with dyslexia may be entitled to an oral test, unless reading skills are required to perform an essential job function. Likewise, if an applicant is hearing impaired, an employer may need to provide written questions to the applicant instead of conducting an oral interview. Testing accommodations may include ensuring accessibility to the testing site, providing the test in an alternate format, providing readers or interpreters or permitting additional time to complete the test. An employer may consult with the individual for suggested accommodations.
It is important for employers to understand that the employer does not have to implement an accommodation that would impose an undue hardship on the organization. An undue hardship is an action requiring significant difficulty or expense based on a variety of factors, including the nature and cost of the accommodation and the overall financial resources of the employer. If more than one possible non-hardship accommodation exists, the employer may select the simpler or less expensive accommodation, so long as it provides meaningful equal employment opportunity. While the choice of the applicant is a primary consideration, employers are not required to provide applicants the accommodation of their choice so long as the accommodation reasonably enables the applicant to perform the test. Employers should keep in mind, however, that the individual applicant’s active participation in identifying and selecting accommodations is an important factor in any lawsuits over accommodation.
Although federal law does not prevent an employer from requiring a pre-employment drug test, Minnesota law imposes conditions on any employer request for drug or alcohol testing of a job applicant.
Under the ADA, it is not a violation for employers to use drug tests to find out if applicants are currently using illegal drugs. A drug test is not considered a “medical examination” and therefore is not prohibited pre-employment.
The ADA specifically provides that any applicant who is currently an illegal drug user is not a qualified individual with a disability due to the illegal drug use. However, people who have been rehabilitated and do not currently use illegal drugs may be protected by the ADA. An employer should follow three general requirements for drug tests:
If an applicant’s test results are positive for illegal drug use, the employer may ask the job applicant whether the applicant uses lawful drugs or if there are other possible explanations for the positive result. The employer’s ability to test is limited to testing for illegal drugs.
Like many employment actions, drug testing can also trigger Title VII claims, which prohibit discrimination on the basis of race, color, religion, sex or national origin. If drug tests are not administered equally, it could generate a claim of discrimination on the basis of one of these protected categories. Accordingly, employers should implement drug testing policies that are administered across the board, without regard to race or any other protected characteristic. Ultimately, whatever policy is in place must be applied fairly and equally to all employees.
Unlike drug tests, alcohol tests are considered medical examinations under the ADA. Under the ADA, an employer may test for alcohol use only after making a conditional offer of employment. Individuals who abuse alcohol may be considered disabled if they are a recovering alcoholic. However, an employer can withdraw the offer based on the test result if failing the alcohol test establishes that the applicant is unable to perform the job.
The standard under Minnesota law to allow an employer to test an applicant for drugs or alcohol is far more strict in its practical application than the federal standard under the ADA. Minnesota employers may only require that a job applicant undergo a drug or alcohol test after extending a job offer and conditioning that offer upon passing drug and/or alcohol testing. In addition, the employer must also impose the same condition and require all applicants for the same or similar positions to undergo the requested drug and alcohol screening.
If an employer extends a conditional job offer and requires that an applicant undergo drug or alcohol screening, the employer must also have previously established its own written drug and alcohol testing policy. That written drug and alcohol testing policy must, as a matter of law, contain all of the following information:
Applicants from whom an employer requests drug or alcohol testing must be given a copy of the employer’s written drug and alcohol testing policy prior to the testing, and the employer should have the applicant sign an acknowledgment that the applicant has been provided the written testing policy, has read the policy, and understands that passing the drug and alcohol testing is a requirement of the job. Additionally, the employer must post notice in an appropriate and conspicuous location on the employer’s premises that the employer has adopted a drug and alcohol testing policy and that copies of the policy are available for inspection during the employer’s regular business hours by either employees or applicants in the employer’s personnel office or some other suitable location.
Once the applicant signs an acknowledgment, the applicant’s drug and alcohol testing must be conducted by a laboratory qualified under Minnesota law to conduct the testing, and that laboratory must conduct both an initial and any confirmatory (second) testing necessary if the initial test produces a positive result. If the confirmatory testing is positive, the applicant may request a third test, to be conducted on the same sample at the applicant’s sole expense.
In accordance with the required terms of the written drug and alcohol testing policy, the applicant must be given an opportunity, both before and after the testing is conducted, to identify any prescription medications or other explanation for a positive test result. The employer must keep results of any drug and alcohol testing strictly confidential.
A Minnesota employer may withdraw a job offer if the applicant does not successfully pass the requested drug and alcohol screening. However, if the applicant’s job offer is withdrawn, the employer must inform the applicant in writing, of the reason for the withdrawal within ten days of the employer’s decision not to hire the applicant.
Applicants from whom an employer requests drug or alcohol testing must be given a copy of the employer’s written drug and alcohol testing policy, and before any tests are conducted, the employer should have the applicant sign an acknowledgment that the applicant has been provided the written testing policy, has read the policy, and understands that passing the drug and alcohol testing is a requirement of the job. The employer must also post notice in an appropriate and conspicuous location on the employer’s premises that the employer has adopted a drug and alcohol testing policy and that copies of the policy are available for inspection during the employer’s regular business hours by either employees or applicants in the employer’s personnel office or some other suitable location.
Once the applicant signs an acknowledgment, the applicant’s drug and alcohol testing must be conducted by a laboratory qualified under Minnesota law to conduct the testing, and that laboratory must conduct both an initial and any confirmatory (second) testing necessary if the initial test produces a positive result. If the confirmatory testing is also positive, the applicant may request a third test, to be conducted on the same sample at the applicant’s sole expense.
A Minnesota employer may withdraw a job offer if the applicant does not successfully pass the requested drug and alcohol screening. However, if the applicant’s job offer is withdrawn, the employer must inform the applicant of the reason for the withdrawal within ten days of the employer’s decision not to hire the applicant.
Federal law governs the use of lie detector tests in the workplace. The Employee Polygraph Protection Act (EPPA) prohibits most private employers from using lie detector tests for pre-employment screening. A lie detector test is broadly defined as a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator, or any similar device, whether mechanical or electrical, which is used to measure the honesty or dishonesty of an individual. The EPPA applies to all employers engaged in or affecting commerce. Federal, state, and local governments are not affected by the law. Also, the law does not apply to tests given by the federal government to certain individuals engaged in national security-related activities.
As a general rule, an employer cannot require a job applicant to take a lie detector test as a condition of employment. The EPPA does, however, authorize lie detector tests under very limited circumstances. The EPPA permits polygraph tests to be administered in the private sector, subject to restrictions, to certain prospective employees of security service firms (armored car, alarm, and guard) and of pharmaceutical manufacturers, distributors and dispensers. In instances where polygraph tests are legally permitted, they are subject to numerous and strict standards concerning the conduct and length of the test. Further, examinees have a right:
The EPPA does not preempt any provision of any state or local law or any collective bargaining agreement that is more restrictive with respect to lie detector tests.
Minnesota law makes it a criminal offense for an employer to require an applicant or employee as a condition of employment or continued employment to take a polygraph or any other form of mechanical or electrical lie detector test. In addition, any Minnesota employer requesting that an applicant or employee take a lie detector test can also be subject to a claim for civil damages from the employee or applicant. The only time a lie detector test is permitted under Minnesota law is when the employee or applicant requests the testing, and, in that case, the employer must make clear to the employee or applicant that the testing is completely voluntary.
There are no federal or state restrictions preventing a private employer from requiring applicants to undergo fingerprinting. However, if an employer decides to fingerprint applicants, it should create a policy that is uniformly applied to all applicants in a job category.
Minnesota adheres to what is called the employment-at-will doctrine. Employment-at-will means that either the employer or the employee may terminate the employment relationship at any time, with or without notice, and with or without cause, for any reason not prohibited by law. Minnesota law actually presumes that employment relationships are at-will.
For employers, the employment at-will doctrine is particularly important because it limits the claims that can be brought by employees against their former employers. Specifically, this means that an employee cannot sue an employer for breach of contract or wrongful discharge in Minnesota unless the employee can show that an employment contract of a definite duration existed or that another exception to the employment-at-will doctrine applies.
While employers may wish to contract with certain employees, such arrangements often are not desirable, in part because an employee then has a potential breach of contract claim if the employment relationship is not a positive one. To avoid any potential confusion about whether or not an employment relationship is at-will, employers that wish to create only at-will employment relationships with their employees are advised to include specific written statements in all of their basic employment documents (for example, offer letters, employee handbooks, and handbook acknowledgment forms) that clearly state the employment is at-will.
The situation often arises when employees are hired under a written contract for a term of years and then are allowed to continue working past the expiration date. The courts will look to the intent of the parties, the best evidence of which is what they expressed in their written contract. The employer should take care so that an initial employment contract cannot be construed as a promise for additional renewal terms if the employee continues working past the expiration date. If the contract does not address this issue and the employee continues to perform the same services after the contract expires, the court could make a presumption that the employment agreement automatically renews with the same terms and conditions of service and for the same duration as the old employment agreement.
Whenever employment at-will disclaimers are used, care should be taken not to violate the National Labor Relations Act (NLRA), which gives employees the ability to act collectively to negotiate the terms and conditions of their employment, such as by the inclusion of a “just cause” for discharge clause in any collective bargaining agreement. The National Labor Relations Board (NLRB) has recently begun bringing claims against employers based on the theory that overly broad or restrictive at-will language could have a coercive impact on the employees’ exercise of their statutory rights.
A common way that employers communicate information to potential hires about an employment position is through offer letters. Offer letters generally contain items such as starting salary, start date, bonus information, and other information about the prospective employee’s compensation and benefits. Such letters may also be used to advise the potential hire of any remaining steps that must be taken or any obligations that must be met before employment can begin (for example, drug testing, criminal background check, or fitness-for-duty tests).
Employers should be mindful that offer letters can be a “trap for the unwary.” For example, if an employer uses language in an offer letter that suggests permanence or a specific duration for the employment relationship, such language might be interpreted as creating an employment contract for a definite or fixed term. Based upon the letter, the employee may claim to have an enforceable contract. Employers should safeguard against such potential claims by always including a specific at-will disclaimer in offer letters and by avoiding language that suggests a specific duration of employment (for example, “annually”). Employers should also avoid using language that suggests a permanent employment relationship will be created, such as “as long as you perform satisfactorily, you will have a job” or “we consider your employment to be part of an enduring employment relationship.”
If an employer decides to make use of an offer letter, the letter should fully describe the terms and conditions of the job offer as the company understands those terms and conditions, and the letter should clearly indicate that it supersedes any prior oral promises or discussions the applicant may have had with any employer representative.
According to federal immigration laws, new employees must complete Section 1 of the I-9 attestation form on the first day of employment and the employer must complete Section 2 within three business days after the employee is hired. Employees must attest that they are authorized to work in the United States. The employer must attest that it has reviewed the employee’s identification documents and that the documents appear to be genuine. It is unlawful to require the employee to produce any specific document or combination of documents. The I-9 form must be completed – an employer cannot simply attach photocopies of the employee’s documentation. An employer cannot hire a person who refuses to fill out the form. The I-9 employee verification form can be downloaded at:
Employers must take care to use the most updated I-9 form available, the most recent version has a date of 10/21/2019, on the lower left-hand corner and an expiration date of 10/31/2022, on the upper right-hand corner.
Since 2011, Minnesota law has required that employers use the E-Verify system for all newly hired employees of any employer who is a vendor or subcontractor providing services to the state of Minnesota according to a contract valued at $50,000 or more. The E-Verify system is a free program administered by the Social Security Administration (SSA) and U.S. Citizenship and Immigration Services (USCIS). It permits employers to use the Internet to compare information provided on the I-9 form to data from government records in order to determine quickly whether the newly hired employee is eligible to work within the United States. If the information matches, the employee is deemed eligible to work in the United States. If there is a mismatch, E-Verify will alert the employer, who must then take steps to resolve the mismatch by contacting the government within eight federal workdays.
More information on the E-Verify and directions to sign up can be obtained from the U.S. Citizenship and Immigration Services website at:
Under Minnesota law, new hires must receive a detailed written notice at the start of the their employment containing the following information:
Both Minnesota statute and the federal Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) require all employers to report newly hired or rehired employees to the Minnesota state directory within 20 days of each new hire, rehire, temporary employee, or employee returning to work.
Through the specific form that has been developed by the Minnesota Department of Human Services, working in connection with federal requirements, a new hire report must include information about:
A copy of the New Hire Form required by the state of Minnesota, as well as answers regarding potential employer questions about how to complete the form, is available at:
Policies and Forms
Recruiting and hiring — Minnesota
About the Firm
About the editor
Features of the HR Library
Snapshot – An HR audit — Minnesota
Compliance thresholds — Minnesota
Recruiting and hiring — Minnesota
Background checks — Minnesota
Immigration — Minnesota
Temporary and leased employees — Minnesota
Independent contractors — Minnesota
Noncompete agreements and trade secrets — Minnesota
Policies and procedures manuals — Minnesota
Wages and hours — Minnesota
Child labor — Minnesota
Discrimination — Minnesota
Disabilities and reasonable accommodation — Minnesota
Workplace harassment — Minnesota
Benefits — Minnesota
Health insurance reform — Minnesota
Family and medical leave — Minnesota
Military leave — Minnesota
Other types of leave — Minnesota
Performance evaluations — Minnesota
Personnel files — Minnesota
Workplace investigations — Minnesota
Discipline — Minnesota
Termination — Minnesota
Plant closings and mass layoffs — Minnesota
Health insurance continuation coverage — Minnesota
Unemployment compensation — Minnesota
Whistleblower protections — Minnesota
Privacy rights — Minnesota
Health insurance portability and privacy — Minnesota
Protecting electronic information — Minnesota
Social media — Minnesota
Safety and health — Minnesota
Workplace violence — Minnesota
Workers' compensation — Minnesota
Politics in the workplace — Minnesota
Celebrating in the workplace — Minnesota
Federal contractors and affirmative action — Minnesota
Public employers — Minnesota
Unions — Minnesota
Telecommuting — Minnesota
Drugs and alcohol — Minnesota
Diversity in the workplace — Minnesota
Disaster planning — Minnesota
Pandemic outbreaks — Minnesota
Appendix A: Recordkeeping requirements
Appendix B: Posting Requirements