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Data Practices for

Personnel Records and

Guidelines for Background Checks

Table of Contents Introduction ................................................................................................................................. 1 Data Practices Policy for Personnel Records .......................................................................... 2 Data Classifications .................................................................................................................... 4 Appendix A – Definitions ................................................................................................. 17 Appendix B – Explanation of Public Data on Current and Former Employees (M.S. 13.43, subd. 2) ....................................................................................................... 19 Appendix C – Personnel data on current and former applicants for employment by a

government entity is public (M.S. 13.43, subd. 3) ........................................................... 23 Section I – Investigative and Disciplinary Data, Grievance Settlements and Arbitration Awards .................................................................................................................... 24 Appendix A – Stipulation ................................................................................................. 32 Appendix B – Settlement & Release ............................................................................... 34 Section II – Conducting Background Checks ........................................................................ 38 Appendix A – Applicant Authorization for Release of Information from Current and Former Employers .................................................................................................... 48 Appendix B – Telephone Reference Check (Sample) .................................................... 50 Appendix C – Sample Reference Check Letter .............................................................. 51 Appendix D – Employee Reference Check (Sample) ..................................................... 52 Appendix E – Contact Information for Current and Former Employers ........................... 53 Appendix F – Criminal Background Release Form ......................................................... 54 Appendix F1 – Criminal Background Disclosure Form.................................................... 55 Appendix G – Tips for using Internet Searches and Social Networking websites for background checks ......................................................................................................... 56 Section III – Responding To Personnel Data Requests......................................................... 57 Section IV – Affirmative Action and Equal Opportunity Data ............................................... 65 Section V – Informed Consent ................................................................................................. 70 (Releasing Private and Confidential Data) Appendix A - Informed Consent to the Release of Private Personnel Data Under the Minnesota Government Data Practice Act (Sample Form) ....................................... 73 Appendix B – Consent to Release – Request from an Individual (Sample Form) ........... 75 Section VI – Collecting Private and Confidential Data .......................................................... 76 (Tennessen Warning Notices)

Data Practices for Personnel Records (1/11)

Introduction The Minnesota Government Data Practices Act (MGDPA) governs the collection and disclosure of all government data, including personnel data. The purpose of the Act is threefold:

• to protect individuals' rights to privacy; • to protect the public's right to know; and • to protect government's access to data needed for effective management.

All state agency human resource staff should be aware of the public or not public status of all personnel information and of their obligation to comply with the Act's requirements concerning the collection and disclosure of that data. This publication will serve as a reference for state agency staff who are responsible for ensuring that the agency follows data practices requirements for personnel records when:

• developing policies and procedures related to the collection, maintenance, and dissemination of personnel data and,

• when developing policies and procedures for background checks. While this publication is designed primarily for state agency human resource directors and staff, we encourage agencies to share it with others who use personnel data and/or conduct background checks. In addition, we recommend that agencies designate a staff person in each agency to administer personnel data practices and to serve as a liaison with Minnesota Management & Budget (MMB) on this subject. Finally, we recommend that agencies include data practices responsibilities including use of such data when conducting background checks in their orientation for new supervisors and other staff outside of the human resources function. Agency staff should be aware (1) of the importance of this subject, (2) of the need to be informed of the public or not public status of any personnel data they use, and (3) that resources such as this publication exist to provide information regarding the MGDPA and guidelines for specific situations, including conducting background checks. To share your comments or for more information, please contact your MMB staffing or labor relations representative.

Data Practices for Personnel Records (1/11) 1

Data Practices Policy for

Personnel Records

Data Practices Policy for Personnel Records (1/11) 2

Data Practices Policy for Personnel Records (1/11) 3

Data Practices Policy for Personnel Records The Minnesota Government Data Practices Act (Minnesota Statutes Chapter 13, hereinafter the “MGDPA”) governs the collection, creation, receipt, maintenance and dissemination of all government data, including personnel data. Policy Statement It is the policy of the State of Minnesota to apply the Act fairly and consistently to protect individuals’ rights to privacy, to provide access to information needed for the effective management of the state’s human resources, and to ensure that government data is appropriately available to the public. Each state agency in the executive branch shall enforce this policy. Purpose The purpose of this document is to guide agencies in their implementation of the state’s policy and the applicable laws regarding the collection, dissemination and storage of personnel data. Scope of Coverage This policy and the associated guidelines apply to all agencies in the executive branch and are designed to provide guidance to state agency personnel officers, labor relations representatives, affirmative action officers, safety officers, workers' compensation coordinators, designated insurance representatives, commissioners, managers, supervisors, and any others who create, use or maintain personnel data. This policy applies to all personnel records and information an agency has in whatever form. Data means all data collected, created, received, maintained or disseminated by a state

agency regardless of its physical form, storage media or conditions of use. Personnel data means government data maintained because an individual is or was an

employee or applicant for employment, a volunteer, an independent contractor, or member of or applicant for an advisory board or commission.

This policy covers the collection and storage of data on:

• current and former employees; • applicants for employment; • volunteers; • independent contractors; and • members of advisory boards or commissions;

and the release of such personnel data to:

• the public, including the press; • the subject of the data and his/her authorized representative; • exclusive bargaining representatives; • MMB and appointing authorities; and • others authorized to receive the data.

Data Classifications

Data Classifications (1/11) 4

Classification of Data Two basic criteria determine the classification of government data. One criterion is whether or not the data is on an individual subject. The other criterion involves a determination of who has access to the data. The following explanation and chart will serve as a guide to the classifications. Note that two of the classifications are "public"; the other four are “other than public” and have varying restrictions on accessibility. (Definitions of the six classifications are also provided in the following sections and in Appendix A.) • Data on individuals means all government data in which any individual is or can be

identified as the subject of that data, unless the appearance of the name or other identifying data can be clearly demonstrated to be only incidental to the data and the data are not accessed by the name or other identifying data of any individual.

(M.S. 13.02, subd. 5) Examples include information such as an individual’s social security number, name, age,

work location, and documents such as performance reviews, disciplinary records, and position descriptions.

Data which is on an individual may be: Public — accessible to anyone; or other than public: Private — accessible only to the subject of the data and others specifically authorized

access; or Confidential — accessible only to authorized government officials. • Data not on individuals means all government data which is not data on individuals. (M.S.

13.02, subd. 4) Examples include summaries of personnel data when the individual subjects of the data

cannot be identified (for example, protected group reports, or the total number of women employed by an agency); and data not associated with individuals (for example, Hay ratings or class codes).

Data which is not on an individual may be: Public — accessible to anyone; or other than public: Nonpublic — accessible only to the subject(s) of the data, if any, and others specifically

authorized access; or Protected Nonpublic — accessible only to authorized government officials.


P U B L I C

Public

Data on Individuals

Data Not on Individuals

Accessible to anyone

N O T P U B L I C

Public

Private Nonpublic

Confidential Protected Nonpublic

Accessible only to the subject of the data

and authorized representative

Accessible only to authorized

government representatives


The six sections which follow explain how "personnel data" and other data related to employment issues are classified under the MGDPA's classification scheme. As a general rule . . . Data on individuals. Personnel data on an individual may be public, private or confidential. Personnel data is presumed to be private unless it is designated specifically as public under M.S. 13.43 of the MGDPA. Thus, only that data specifically listed as public in that section is accessible to the public. The remaining data is private. Generally, private personnel data is accessible to the subject of the data - the employee or applicant. However, when an investigation is pending, some personnel data on an individual may be classified as confidential and thus is not accessible to the data subject (see “Classification: Confidential Data” later in this section) In addition, when private data has multiple subjects, access by the data subjects may be limited. NOTE: Chapter 13 establishes a presumption that government data is public unless a law or temporary classification provides otherwise (M.S. 13.01, subd. 3). However, because Chapter 13 also specifically makes all personnel data private unless expressly made public, this presumption does not apply to personnel data (M.S. 13.43, subds. 2 and 4) Data not on individuals. State agencies also collect and maintain employment-related data which is not on individuals. Such data may be public, nonpublic, or protected nonpublic. Generally, employment-related data which is not on individuals is presumed to be public unless the data is otherwise classified by law as nonpublic or protected nonpublic. NOTE: Unless otherwise expressly provided by a particular statute, the classification of data is determined by the law applicable to the data at the time a request for access to the data is made, regardless of the data's classification at the time it was collected, created, or received. (M.S. 13.03, subd. 9)


1. CLASSIFICATION: PUBLIC DATA ON INDIVIDUALS

Definition: Data which is on individuals and is accessible to the public.

In general, personnel data on individuals is assumed to be private or confidential unless it

has specifically been designated public.

Public Data on Current and Former Employees (M.S. 13.43, subd. 2 and 2a)

The following personnel data on current and former employees, volunteers, and independent contractors of a government entity is public: (See Appendix B for an explanation of these data elements.)

• name; • employee identification number, which must not be the employee's social security number; • actual gross salary; • salary range; • terms and conditions of employment relationship • contract fees; • actual gross pension; • the value and nature of employer paid fringe benefits; • the basis for and the amount of any added remuneration, including expense reimbursement,

in addition to salary; • job title and bargaining unit; • job description; • education and training background; • previous work experience; • date of first and last employment; • the existence and status of any complaints or charges against the employee, regardless of

whether the complaint or charge resulted in a disciplinary action; • the final disposition of any disciplinary action together with the specific reasons for the action

and data documenting the basis of the action, excluding data that would identify confidential sources who are employees of the public body;

For purposes of this subdivision, a final disposition occurs when the government entity makes its final decision about the disciplinary action, regardless of the possibility of any later proceedings or court proceedings. Final disposition includes a resignation by an individual when the resignation occurs after the final decision of the government entity, or arbitrator. In the case of arbitration proceedings arising under collective bargaining agreements, a final disposition occurs at the conclusion of the arbitration proceedings, or upon the failure of the employee to elect arbitration within the time provided by the collective bargaining agreement. A disciplinary action does not become public data if an arbitrator sustains a grievance and reverses all aspects of any disciplinary action. [M.S. 13.43, subd. 2 (b)]. (Note exception below for public officials).


• the terms of any agreement settling any dispute arising out of an employment relationship, including a buyout agreement as defined in section 123B.143, subdivision 2, paragraph (a); except that the agreement must include specific reasons for the agreement if it involves the payment of more than $10,000 of public money;

• work location; • a work telephone number; • badge number; • work-related continuing education • honors and awards received; • payroll time sheets or other comparable data that are only used to account for employee's

work time for payroll purposes, except to the extent that release of time sheet data would reveal the employee's reasons for the use of sick or other medical leave or other not public data. EXCEPTIONS: Data related to a complaint or charge against a public official: Notwithstanding Minn. Stat. § 13.43, subd. 2, paragraph (a), clause (5), upon completion of an investigation of a complaint or charge against a public official, or if a public official resigns or is terminated from employment while the complaint or charge is pending, all data relating to the complaint or charge are public, unless access to the data would jeopardize an active investigation or reveal confidential sources. For purposes of this paragraph, "public official" means: (1) the head of a state agency and deputy and assistant state agency heads; (2) members of boards or commissions required by law to be appointed by the governor

or other elective officers; and (3) executive or administrative heads of departments, bureaus, divisions, or institutions.

(M.S. 13.43, subd. 2 (e))

Undercover Law Enforcement Officers: All personnel data related to an individual employed as or applicant for employment as undercover law enforcement officers are private. (M.S. 13.43, subd. 5) Limitation on disclosure of certain personnel data: Notwithstanding any other provision of this section, the following data relating to employees of a secure treatment facility defined in section 253B.02, subdivision 18a, employees of a state correctional facility, or employees of the Department of Corrections directly involved in supervision of offenders in the community, shall not be disclosed to facility patients, corrections inmates, or other individuals who facility or correction administrators reasonably believe will use the information to harass, intimidate, or assault any of these employees: place where previous education or training occurred; place of prior employment; and payroll timesheets or other comparable data, to the extent that disclosure of payroll timesheets or other comparable data may disclose future work assignments, home address or telephone number, the location of an employee during nonwork hours, or the location of an employee’s immediate family members. (M.S. 13.43, subd. 5a)


http://www.revisor.leg.state.mn.us/stats/123B/143.html

Data disclosure by statewide pension plans. Notwithstanding any law to the contrary, with respect to data collected and maintained on members, survivors, and beneficiaries by statewide retirement systems that is classified as public data in accordance with subdivision 2, those retirement systems may be only required to disclose name, gross pension, and type of benefit awarded, except as required by sections 13.03, subdivisions 4 and 6; and 13.05, subdivisions 4 and 9. (M.S. 13.43, subd. 2a)

Public Data on Applicants for Employment

(M.S. 13.43, subd. 3) Current and Former Applicants for Employment The following data on current and former applicants for employment by a government entity

is public:* (see Appendix C for an explanation of these data elements): • veteran status • relevant test scores • rank on eligible list • job history • education and training • work availability

The name of an applicant for employment is private until the applicant is certified as eligible for appointment to a vacancy or unless and until the applicant is considered as a finalist for a position. (A finalist is an applicant selected to be interviewed by the appointing authority prior to selection.)

*EXCEPTION: Data on individuals who are undercover law enforcement applicants is

private. (M.S. 13.43, subd. 5)

Elected and Appointed Officials (M.S. 13.601, subd. 3)

The following is public data about applicants for appointment to a public body such as advisory boards or commissions:

• name • city of residence, except when the appointment has a residency requirement that

requires the entire address to be public • volunteer work • awards and honors • employment history • education and training • prior government service

Once an individual is appointed to a public body the following additional items of data are public.

• residential address • either a telephone number or electronic mail address where the appointee can be

reached, or both at the request of the appointee


http://www.revisor.leg.state.mn.us/stats/13/03.html


2. CLASSIFICATION: PRIVATE DATA

Definition: Data on individuals which is available only to the individual, his/her authorized representative, authorized state agencies, and those other individuals or entities authorized to see the data.

Private Data on Employees and Applicants

• All personnel data not listed as public in M.S. 13.43, subds. 2, 2a and 3 is private. This

would include, for example, medical information, names of references, and performance reviews.

(M.S. 13.43, subd. 4) • Dependents. Data pertaining to an employee’s dependents are private data on individuals. (M.S. 13.43, subd. 4) • Undercover law enforcement officers. All personnel data maintained on individuals

applying for or employed as undercover law enforcement officers are private. (M.S. 13.43, subd. 5) • Employee assistance data. All data created, collected or maintained by any state agency

or political subdivision to administer employee assistance programs similar to the one authorized by section 43A.319 are classified as private, pursuant to section 13.02, subdivision 12. This section shall not be interpreted to authorize the establishment of employee assistance programs.

(M.S. 13.43, subd. 7) • Harassment data. When allegations of sexual or other types of harassment are made

against an employee, the employee does not have access to data that would identify the complainant or other witnesses if the responsible authority determines that the employee's access to that data would:

(1) threaten the personal safety of the complainant or a witness; or (2) subject the

complainant or witness to harassment.

If a disciplinary proceeding is initiated against the employee, data on the complainant or witness shall be available to the employee as may be necessary for the employee to prepare for the proceeding.

(M.S. 13.43, subd. 8)


http://www.revisor.leg.state.mn.us/stats/43A/319.html


• Peer counseling debriefing data. (a) Data acquired by a peer group member in a public safety peer counseling debriefing is private data on the person being debriefed. (b) For purposes of this subdivision, "public safety peer counseling debriefing" means a group process oriented debriefing session held for peace officers, firefighters, medical emergency persons, dispatchers, or other persons involved with public safety emergency services, that is established by any agency providing public safety emergency services and is designed to help a person who has suffered an occupation-related traumatic event begin the process of healing and effectively dealing with posttraumatic stress. (M.S. 13.43, subd. 9)

Releasing Private Data

• Private data may be released pursuant to a court order. (M.S. 13.43, subd. 4)

Generally, neither a subpoena issued by an administrative agency nor by a clerk of court is a court order for purposes of this provision. Instead, generally, an agency may release private data only pursuant to an order of a judge. (This is because the law contemplates that before ordering disclosure, a court will have the opportunity to review the data and balance the requestor's need to know against the subject's privacy interests. If appropriate, the court may then limit the disclosure of potentially sensitive information and/or impose protective safeguards.)

• Private data may be released pursuant to informed consent of the subject. (M.S. 13.05,

subd. 4) • Private data may be released when authorized by law. Note the following examples:

► Photographs: The government entity may display a photograph of a current or former employee to a prospective witness as part of the government entity’s investigation of any complaint or charge against the employee. (M.S 13.43, subd. 2(c))

► Complainant Statement: A complainant has access to a statement provided by the

complainant to a government entity in connection with a complaint or charge against an employee. (M.S. 13.43, subd. 2(d))

► Access by labor organizations: Personnel data may be disseminated to labor

organizations to the extent that the responsible authority determines that the dissemination is necessary to conduct elections, notify employees of fair share fee assessments, and implement the provisions of chapters 179 and 179A. Personnel data shall be disseminated to labor organizations and to the bureau of mediation services to the extent the dissemination is ordered or authorized by the commissioner of the bureau of mediation services. (M.S. 13.43, subd. 6)

► Protection of employee or others: If the responsible authority or designee of a

government entity reasonably determines that the release of personnel data is necessary to protect an employee from harm to self or to protect another person who may be harmed by the employee, data that are relevant to the concerns for safety may be released as provided in this subdivision.


The data may be released:

1. to the person who may be harmed and to an attorney representing the person when the data are relevant to obtaining a restraining order;

2. to a prepetition screening team conducting an investigation of the employee

under section 253B.07, subdivision 1; or 3. to a court, law enforcement agency, or prosecuting authority.

Section 13.03, subdivision 4, paragraph (c), applies to data released under this subdivision, except to the extent that the data have a more restrictive classification in the possession of the agency or authority that receives the data. If the person who may be harmed or the person's attorney receives data under this subdivision, the data may be used or released further only to the extent necessary to protect the person from harm. (M.S. 13.43, subd. 11)

► Background Investigation Under 626.87: A law enforcement agency shall share

data from a background investigation done under 626.87 with the Peace Officers Standards and Training Board or with a law enforcement agency doing an investigation of the subject of the data under 626.87. (M.S. 13.43. Subd. 12)

► Dissemination of data to Department of Employment and Economic

Development: Private personnel data must be disclosed to the Department of Employment and Economic Development for the purpose of administration of the unemployment benefits program under chapter 268. (M.S. 13.43, subd. 13)

► Dissemination of data to law enforcement: Private personnel data, or data on

employees that are confidential data under section 13.39, may be disseminated to a law enforcement agency for the purpose of reporting a crime or alleged crime committed by an employee, or for the purpose of assisting law enforcement in the investigation of a crime committed or allegedly committed by an employee. (M.S. 13.43, subd. 15)

► Continuity of operations: Personal home contact information may be used to

ensure that an employee can be reached in the event of an emergency or other disruption affecting continuity of operation of a government entity. An employee's personal home contact information may be shared with another government entity in the event of an emergency or other disruption to ensure continuity of operation of either government entity. (M.S. 13.43, subd. 17)

► Workers’ Compensation: Private personnel data of state employees must be disclosed to the Department of Administration for the purpose of administration of the workers' compensation program as provided in chapter 176. (M.S. 13.43, subd. 18)

► Federal and State Agency Authority: Some federal and state agencies have specific statutory authority to obtain private data for some purposes either with or without a subpoena. For example, the Minnesota Department of Human Rights has this authority. (M.S. 363.05, subd. 2(b))


http://www.revisor.leg.state.mn.us/stats/253B/07.html



3. CLASSIFICATION: CONFIDENTIAL DATA

Definition: Data on individuals which is not public and is not accessible to the individual subject of that data by statute or federal law.

Personnel records which are confidential may include active investigative data if the chief attorney acting for the government entity determines that a civil legal action is pending. A pending civil legal action includes but is not limited to judicial, administrative or arbitration proceedings. (M.S. 13.39, subd. 1)

M.S. 13.39, subd. 2 states: "(a) Except as provided in paragraph (b), data collected by a government entity as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action or which are retained in anticipation of a pending civil legal action are classified as protected nonpublic data pursuant to section 13.02, subdivision 13, in the case of data not on individuals and confidential pursuant to section 13.02, subdivision 3, in the case of data on individuals. Any government entity may make any data classified as confidential or protected nonpublic pursuant to this subdivision accessible to any person, agency or the public if the government entity determines that the access will aid the law enforcement process, promote public health or safety or dispel widespread rumor or unrest. (b)A complainant has access to a statement provided by the complainant to a government entity under paragraph (a).”

NOTE: "Inactive civil investigative data are public, unless the release of the data would

jeopardize another pending civil legal action, and except for those portions of a civil investigative file that are classified as not public data by Chapter 13 or other law. Any civil investigative data presented as evidence in court or made part of a court record shall be public. Civil investigative data become inactive upon the occurrence of any of the following events: (1) a decision by the government entity or by the chief attorney acting for the government entity not to pursue the civil action; (2) expiration of the time to file a complaint under the statute of limitations or agreement applicable to the civil action; (3) exhaustion of or expiration of rights of appeal by either party to the civil action. Data determined to be inactive under clause (1) may become active if the government entity or its attorney decides to renew the civil action." (M.S. 13.39, subd. 3)

4. CLASSIFICATION: PUBLIC DATA NOT ON INDIVIDUALS

Definition: Data which is accessible to the public and which does not identify individual subjects of the data unless such identifying data is only incidental to the data.

Data not on individuals includes:

• summaries of data on individuals (for example, the number of applications received),

and • data not associated with individuals (for example, Hay ratings, and established

compensation ranges for civil service classes). Data not on individuals is generally presumed to be public unless classified as nonpublic

by statute.


5. CLASSIFICATION: NONPUBLIC DATA

Definition: Data not on individuals which is other than public and is accessible to the subject, if any, of the data.

Nonpublic Examination Data

(M.S. 13.34) Examination data consists of testing or examination materials or scoring keys used:

• solely to determine individual qualifications for appointment or promotion in public service;

• to administer a licensing examination; or • to administer an academic examination.

If the disclosure of such data would compromise the objectivity or fairness of the

examination process, it is classified as nonpublic and may be released only pursuant to court order.

Nonpublic examination data include:

• test books, • performance tests and oral examination tapes, • scoring keys, • test instructions and rating materials which include specific test content or answers.

Completed versions of examinations are accessible for review by applicants UNLESS that

access would compromise the objectivity, fairness or integrity of the examination process. Minnesota Management & Budget is responsible for determining whether or not such access to exam material will be allowed. The responsible authority is not required to provide copies of completed examinations or answer keys to any individual who has completed an examination.

Nonpublic Salary Benefit Survey Data

(M.S. 13.435) Salary and personnel benefit survey data maintained by state agencies, political

subdivisions or statewide systems is classified as nonpublic if:

• purchased from consulting firms, nonprofit corporations, or associations; or • obtained from employers with the written understanding that the data shall not be made

public.

Nonpublic Employee Relations Data (M.S. 13.67)

The following data collected, created, or maintained by Minnesota Management & Budget is

classified as nonpublic data:


• the commissioner’s and managerial plans governing compensation and terms and conditions of employment until the plan is submitted to the legislative commission on employee relations

(M.S. 13.67 (a) and (d))

• data pertaining to grievance or interest arbitrations that has not been presented to the arbitrator or other party during the arbitration process

(M.S. 13.67 (b))

• notes and preliminary drafts of reports prepared during personnel investigations and personnel management reviews of state departments and agencies (this language is specific to MMB and does not cover employee misconduct investigations conducted by state agencies)

(M.S. 13.67 (c))

• claims experience and all related information received from carriers and claims administrators participating in either the state group insurance plan, the Minnesota employee insurance program, the state workers' compensation program or the public employees insurance program, and survey information collected from employees and employers participating in these plans and programs, except when the department determines that release of the data will not be detrimental to the plan or program

(M.S. 13.67 (e))

Nonpublic Labor Relations Information (M.S. 13.37, subd. 1 and 2)

Labor relations data which do not relate to a specific labor organization are nonpublic.

Labor relations information means management positions on economic and non-economic items that have not been presented during the collective bargaining process or interest arbitration, including information specifically collected or created to prepare the management position.

6. CLASSIFICATION: PROTECTED NONPUBLIC DATA

Definition: Data not on individuals which is other than public and not accessible to the subject of the data by statute.

Protected Nonpublic Labor Relations Information

(M.S. 13.37, subd. 1 and 2) Specific labor relations information which relates to a specific labor organization is classified

as protected nonpublic data. Labor relations information means management positions on economic and non-economic items that have not been presented during the collective bargaining process or interest arbitration, including information specifically collected or created to prepare the management position.


Appendix A Definitions “Confidential data” means data on individuals which is not public and not accessible to the individual subject of that data. (M.S. 13.02, subd. 3; Minn. Rules pt. 1205.0200, subp. 3) “Data” means information maintained in any form including but not limited to paper records and files, microfilm, computer medium, or other processes. (Minn. Rules pt. 1205.0200, subp. 4) “Data not on individuals” means all government data which is not data on individuals. (M.S. 13.02, subd. 4) “Data on individuals” means all government data in which any individual is or can be identified as the subject of that data. unless the appearance of the name or other identifying data can be clearly demonstrated to be only incidental to the data and the data are not accessed by the name or other identifying data of any individual. (M.S. 13.02, subd. 5; Minn. Rules pt. 1205.0200, subp. 4) “Designee” means any person designated by a responsible authority to be in charge of individual files or systems containing government data and to receive and comply with requests for government data. (M.S. 13.02, subd. 6; Minn. Rules pt. 1205.0200, subp. 5) “Government data” means all data collected, created, received, maintained, or disseminated by any state agency, political subdivision, or statewide system regardless of its physical form, storage media, or conditions of use. (M.S 13.02, subd. 7) “Informed consent” means the subject of private data has consented to disclosure in accordance with the requirements of M.S. 13.05, subd. 4 and Minn. Rules pt. 1205.1400, subp. 4. “Nonpublic data” means data not on individuals which is not public and is accessible to the subject, if any, of the data. (M.S. 13.02, subd. 9) “Not public data” means any data which is classified as confidential, private, nonpublic, or protected nonpublic. (M.S. 13.02, subd. 8a) “Other than public data” means any data which is classified as confidential, private, nonpublic or protected nonpublic.


“Personnel data” means government data on individuals maintained because the individual is or was an employee of or an applicant for employment by, performs services on a voluntary basis for, or acts as an independent contractor with a government entity. (Includes the employee’s official personnel file retained by an agency, the SEMA4 record, and any other files or records such as a supervisory file or grievance file that contains personnel data as identified in M.S. 13.43) (M.S. 13.43, subd. 1) “Private data” means data on individuals which is not public and is accessible to the individual subject of that data. (M.S. 13.02, subd. 12; Minn. Rules pt. 1205.0200, subp. 9) “Protected nonpublic data” means data not on individuals which is not public and not accessible to the subject of the data. (M.S. 13.02, subd. 13) “Public data” means data which is accessible to the public, whether or not it is on individuals. (M.S. 13.02, subd. 14, 15; Minn. Rules pt. 1205.0200, subp. 10) “Responsible authority” means the state official designated by law or by the commissioner of the Department of Administration as the individual responsible for the collection, use and dissemination of any set of data on individuals, government data, or summary data. (M.S. 13.02, subd. 16; Minn. Rules pt. 1205.0200, subps. 12, 13 and 15) “Summary data” means statistical records and reports derived from data on individuals but in which individuals are not identified and from which neither their identities nor any other characteristic that could uniquely identify an individual is ascertainable. (M.S. 13.02, subd. 19; Minn. Rules pt. 1205.0200, subp. 16)


Appendix B Explanation of Public Data on Current and Former Employees (M.S. 13.43, subd. 2) • Name employee name on record • Employee identification number, which must not be the employee’s social security

number the SEMA4 generated employee ID number

• Actual gross salary employee compensation that is fixed and paid on a regular basis including the basis for any

salary change; current or former salary amounts before deductions • Salary range hourly, monthly, yearly minimum and maximum, steps • Terms and conditions of employment relationship

includes terms and conditions outlined in job offer letter or other correspondence; information in SEMA4; hours of work, work schedule, etc.

• Contract fees includes:

• compensation; • reimbursement for travel and subsistence expenses; • total state obligation for compensation and reimbursement; and • terms of payment.

• Actual gross pension benefit amount(s) actually paid after retirement [This information is available only from the applicable retirement association.] • The value and nature of employer paid fringe benefits includes:

• vacation and sick leave; • holidays; • state paid portion of premium for health, life and dental insurance; and • state paid contribution to retirement fund.

• The basis for and the amount of any added remuneration, including expense

reimbursement, in addition to salary not necessarily fixed or regular e.g., merit increases, overtime pay, work out of class pay, travel expenses, training costs, parking, housing and achievement awards

• Job title and bargaining unit includes working title, class title, and bargaining unit • Job description position description, description used for job posting


• Education and training background dates, places, types – in state employment and prior employment; in whatever form you

maintain such information • Previous work experience dates, places, types – in state employment and prior employment; in whatever form you

maintain such information • Date of first and last employment within a government entity (state agency, statewide system, or political entity) Note that the reason for a separation (resignation, retirement, layoff, etc.) is not public. • The existence and status of any complaints or charges against the employee,

regardless of whether the complaint or charge resulted in a disciplinary action A complaint/charge “exists” or “does not exist”. If a complaint/charge exists, the status may

be “pending”, “resolved”, “complete”, etc.

If disciplinary action has occurred but has not yet reached final disposition, no information about the disciplinary action is public.

• The final disposition of any disciplinary action together with the specific reasons for

the action and data documenting the basis of the action, excluding data that would identify confidential sources who are employees of the public body. Includes the type of discipline and any data identifying specific reasons for the discipline and basis of the action. "A final disposition occurs when the government entity makes its final decision about the disciplinary action, regardless of the possibility of any later proceedings or court proceedings. Final disposition includes a resignation by an individual when the resignation occurs after the final decision of the government entity, or arbitrator. In the case of arbitration proceedings arising under collective bargaining agreements, a final disposition occurs at the conclusion of the arbitration proceedings, or upon the failure of the employee to elect arbitration within the time provided by the collective bargaining agreement. However, a disciplinary action does not become public data if an arbitrator sustains a grievance and reverses all aspects of any disciplinary action.” (M.S. 13.43, Subd. 2, (b))

To further explain the statutory language above:

- Until there is a final disposition, no information about a disciplinary action is public. (See exception for public officials below.)

- When a final disposition occurs depends on whether the employee is covered by a

collective bargaining agreement. (See M.S. 13.43, subd. 2, (b)) For employees not covered by a collective bargaining agreement, for example those

covered by Commissioner’s or Manager’s plans, a final disposition occurs when the state agency makes its final decision (after the Loudermill hearing for suspension and discharge) about the disciplinary action regardless of the possibility of any later proceedings or court proceedings.


For employees who are covered by collective bargaining agreements, the final disposition does not occur until the conclusion of the arbitration proceedings or upon failure of the employee to select arbitration within the time frame provided by the collective bargaining agreement.

- Should an arbitrator sustain a grievance and reverse all aspects of the disciplinary

action, the disciplinary action does not become public.

- Final disposition may include a resignation. However, this depends upon when it occurs and again on whether the employee is covered by a collective bargaining agreement.

For employees not covered by collective bargaining agreements, a final disposition

includes a resignation by an individual only when the resignation occurs after the final decision of the state agency (after the discipline has been given, and after the Loudermill hearing for suspension and discharge).

For employees who are covered by collective bargaining agreements, a final disposition

includes a resignation only if it occurs after the final decision of the arbitrator or upon failure of the employee to select arbitration within the time frame provided by the collective bargaining agreement or if the resignation occurs as part of a grievance settlement.

Exception for public officials: "Upon completion of an investigation of a complaint or charge against a public official, or if a

public official resigns or is terminated from employment while the complaint or charge is pending, all data relating to the complaint or charge are public, unless access to the data would jeopardize an active investigation or reveal confidential sources. For purposes of this paragraph, "public official" means:

(1) the head of a state agency and deputy and assistant state agency heads; (2) members of boards or commissions required by law to be appointed by the governor or

other elective officers; and (3) executive or administrative heads of departments, bureaus, divisions, or institutions

within state government." (M.S. 13.43, subd. 2 (e))

NOTE: If you have any questions about whether there has been a final disposition, you should consult with your MMB labor relations representative and/or with the Attorney General’s Office. You should also consult with MMB and/or the Attorney General’s Office with respect to what information you may disclose about disciplinary action after there has been a final disposition. See “Employee Investigations, Discipline, Grievance Settlements and Arbitration Awards” section in this manual for additional information on final disposition.


• The terms of any agreement settling any dispute arising out of the employment relationship, including a buyout agreement as defined in section 123B.143, subdivision 2, paragraph (a); except that the agreement must include specific reasons for the agreement if it involves the payment of more than $10,000 of public money. MS. 13.43, Subd. 2(a)(6). Per Advisory Opinion 09-015 from the Department of Administration, Information Policy Analysis Division (IPAD), this means agreements related to issues over which an employee would resign, be terminated, or face discipline. Any Settlement and Release agreement would be included, however, worker’s compensation settlements would not. Note: M.S. 13.43, subd. 10 prohibits agreements limiting disclosure or discussion of personnel data. A government entity may not enter into an agreement settling a dispute arising out of the employment relationship with the purpose or effect of limiting access to or disclosure of personnel data or limiting the discussion of information or opinions related to personnel data. An agreement or portion of an agreement that violates this paragraph is void and unenforceable. This applies to the following, but only to the extent that the data or information could otherwise be made accessible to the public: 1. an agreement not to discuss, publicize, or comment on personnel data or information; 2. an agreement that limits the ability of the subject of personnel data to release or

consent to the release of data; or 3. any other provision of an agreement that has the effect of limiting the disclosure or

discussion of information that could otherwise be made accessible to the public, except a provision that limits the ability of an employee to release or discuss private data that identifies other employees.

• Work location address of work location; includes work email addresses If an employee’s primary work location is their home, their home address remains private

data; therefore, the state agency address may be designated as the work location. • Work telephone number

If an employee’s primary work location is their home, their home telephone number remains private data; therefore, a telephone within the employee’s agency may be designated as the work telephone number.

• Badge number • Honors and awards received during employment with the government entity; includes achievement awards, length of

service • Payroll time sheets or other comparable data that are used only to account for

employee’s work time for payroll purposes, except to the extent that release of time sheet data would reveal the employee's reasons for the use of sick or other medical leave or other not public data hours worked, hours of paid leave, hours of unpaid leave.

types of leave are public (vacation, sick leave, medical leave, parenthood leave, FMLA

leave, etc.) but the specific reasons for the leave are private. Suspensions are private until final disposition but the unpaid time is public.



Appendix C (M.S. 13.43, subd. 3) Except for applicants to undercover law enforcement positions, the following personnel data on current and former applicants for employment by a government entity is public when a request is made about a specific applicant: • Veterans status • Relevant test scores

(if any) • Rank on eligible list

(if any) • Job history in whatever form you maintain such information as part of the application for a specific

position, excluding private data such as home address • Education and training in whatever form you maintain such information as part of the application for a specific

position, excluding private data such as home address • Work availability includes employment conditions, location, and travel (as collected as part of the state

application for employment process) Names of applicants are private data except when certified as eligible for appointment to a vacancy or when applicants are considered by the appointing authority to be finalists for a position in public employment. "Finalist" means an individual who is selected to be interviewed by the appointing authority prior to selection.

Section I Investigative and Disciplinary Data,

Grievance Settlements and

Arbitration Awards

Data Practices Guidelines (1/11) 24

Investigative and Disciplinary Data, Grievance Settlements and Arbitration Awards THIS section will provide guidance on the administration of Personnel Data related to employee misconduct investigations, discipline, grievance settlements and arbitration awards. The information in this section has also been disseminated in MMB PERSL #1412. Definitions: Personnel Data – As applied in this section, refers to all data as described in M.S. 13.43 on an individual who is an employee of the State. Includes the employee’s official personnel file retained by an agency, the SEMA4 record, and any other files or records such as a supervisory file or grievance file that contain personnel data pursuant to M.S. 13.43. Final Disposition – Pursuant to M.S. 13.43 Subd. 2(b) final disposition occurs when the final decision about the disciplinary action is made, regardless of the possibility of any later proceedings or court proceedings. In the case of arbitration proceedings arising under the collective bargaining agreements, a final disposition occurs at the conclusion of the arbitration proceedings, or upon failure of the employee or the employee’s union to elect arbitration within the time provided by the collective bargaining agreement. [This would include a grievance settlement that was entered into during the grievance process.] Final disposition also includes a resignation by an individual when the resignation occurs after the arbitrator rules or if it is part of a grievance settlement. In the case of employees not covered by a collective bargaining agreement e.g. those covered under the Commissioner’s and Managerial Plans, final disposition occurs after the disciplinary action is taken or issued (after the Loudermill hearing for suspension and discharge). Final disposition also includes a resignation only when the resignation occurs after the final decision of the state agency (again, after the Loudermill hearing for suspension and discharge). Data that are public upon final disposition are the nature of the final disposition along with the specific reasons for the action, and data documenting the basis of the action, excluding data that would identify confidential sources who are employees of the public body. (For data on public officials, see below.) Note: A disciplinary action does not become public data if an arbitrator sustains a grievance and reverses all aspects of the disciplinary action (e.g. rescinds a discharge). Public Officials – Pursuant to M.S. 13.43 Subd. 2(e) “public official” means:

(1) The head of a state agency and deputy and assistant agency heads; (2) Members of boards or commissions required by law to be appointed by the governor or

other elective officers; and (3) Executive or administrative heads of department, bureaus, divisions, or institutions within

state government Upon completion of an investigation of a complaint or charge, or if a public official resigns or is terminated from employment while the complaint or charge is pending, all data relating to the complaint or charge are public, unless access to the data would jeopardize an active investigation or reveal confidential sources.


Investigative Data: Investigative data are data resulting from investigations into employee complaints or charges and/or employer investigations into allegations of employee misconduct. Pursuant to M.S. 13.43 Subd.2(a)(4), the existence and status of any complaints or charges against an employee are public, regardless of whether or not the complaint or charge results in disciplinary action. This means that only the fact that a complaint or charge has been filed against an employee is always public information. However, any specifics about the complaint or charge are private until final disposition has occurred. Investigative data is determined to be active and not public from the time the investigation is initiated until after final action is taken by the final decision maker and final disposition of any disciplinary action occurs. Example: An investigation is conducted by the agency Affirmative Action Officer. The Affirmative Action Officer completes the investigation and sends the report to the Human Resources Director. The Human Resources Director reviews the report and may ask for follow up on certain items. The Human Resources Director then talks to the manager/supervisor responsible for determining action to be taken as a result of the investigative findings. The final action is then taken or issued and the investigation is completed. At this point, for union represented employees, the investigative data are still not public under M.S. 13.43 (see Note below for non union represented employees). The data are private personnel data. Therefore, the investigative data are not available to anyone other than agency management with a need to know, the disciplined employee’s exclusive representative (see section on Access to Data by Exclusive Representatives), the subjects of the data (redacting any private data on other individuals or any other not public data), and any other entities legally authorized to receive data as noted in a Tennessen notice given to the interviewees prior to their interviews.

Note: Non union represented employees: Refer to the “Definitions” section regarding the timing of the release of public data for public officials and employees covered by the Commissioner’s and Managerial Plans. Note: Complainants, respondents, and witnesses have access to copies of their own statements made to the investigator at any point during the investigation.

Investigative data documenting the specific reasons for the action and data documenting the basis for the action becomes public only after final disposition (see “Definitions” section) of any disciplinary action taken as a result of the investigation. If no action is taken as a result of the investigation, a final disposition cannot have occurred. Therefore, the data does not become public and remains private data. However, for public officials the data as described in the “Definitions” section is public regardless of whether or not disciplinary action was taken. Release of investigatory data is discussed further in this document in the sections on “Data on Disciplinary Actions” and “Responding to Data Requests”.


Letters to Complainants and Subject(s) of Investigations - At the conclusion of an investigation, letters to complainants should state only that the investigation has been completed but that the Minnesota Government Data Practices Act prevents the complainant from being informed of the results of the investigation. Letters to the subject(s) of the investigation may state that the investigation has been completed and that the evidence supported the allegation(s) or not. If the investigatory evidence supported the allegation(s), the notification letter to an investigation subject would often be a disciplinary letter. Discriminatory Harassment Investigations - When conducting investigations into allegations of sexual harassment or other types of discriminatory harassment, the provisions of M.S. 13.43, Subd. 8 state that an employee who is the subject of the complaint “does not have access to data that would identify the complainant or other witnesses if the responsible authority determines that the employee’s access to that data would threaten the personal safety of the complainant or a witness; or subject the complainant or witness to harassment.” For this reason, if the agency determines this to be the case, the investigator should not directly identify the complainant/witness to the respondent employee during any investigative interviews. If discipline results, data on the complainant or witnesses is available to the respondent employee as may be necessary to prepare for any contested case hearing or arbitration. If the employee is represented by a union, you may release this data to the union rather than to the employee. Undercover law enforcement officers – Under M.S. 13.43 Subd. 5 all personnel data relating to individuals employed as undercover law enforcement officers are private data on individuals. Data on Disciplinary Actions: Data on any disciplinary action that is taken against an employee(s) are private until final disposition has occurred. As stated in the “Definitions” section, data that are public upon final disposition are the nature of the final disposition, the specific reasons for the action, and data documenting the basis of the action (Note exception for public officials as stated in the “Definitions” section). The disciplinary letter itself may contain the first two data elements, however, on a case by case basis, the agency must review and determine what information was used as the specific reasons for the action and data documenting the basis of the action. This may include investigation records, interviews with employees and/or witnesses, admission of allegations by the employee, etc. regardless of where the data reside. The fact that data related to the disciplinary action exists does not make that data public. It is public only if the agency relied on that data in making a determination that the discipline should occur. Data that don’t constitute the final disposition, provide specific reasons for the action or document the basis of the action should be redacted. Keep in mind that documents containing the reasons or basis for the action may still contain private data or other not public data which must be redacted before the documentation is released. Private data would include information on the subject of the data or on any witnesses that are not specifically classified as public under the M.S. 13.43, for example, home address, medical data, performance data on a witness, witness ”opinions”, data identifying undercover law enforcement officers, or data identifying the complainant. (Also see next section on “Access to Data by Exclusive Representatives”.) As stated previously in the “Definitions” section, a disciplinary action does not become public data if an arbitrator sustains a grievance and reverses all aspects of the disciplinary action (e.g. rescinds a discharge).


Access to Data by Exclusive Representatives: Pursuant to M.S. 13.43 Subd. 6, labor organizations may have access to investigatory data when they are processing grievances on disciplinary action taken as a result of an investigation. Tennessen warnings given to employees, both those that are subjects of an investigation and those that are not subjects of an investigation (e.g. witnesses), have statements informing employees that the data they provide may be given to exclusive representatives (See MMB PERSL #1411 for information on Tennessen warnings). Non-public information that is requested must be relevant to the exclusive representative’s role in representing employees in the bargaining unit. Information is relevant if it appears to be “reasonably necessary” for the exclusive representative to perform its duty to investigate and process grievances or to fulfill its collective bargaining objectives. Unless the disclosure of data is prohibited by statute (e.g. Vulnerable Adults Act, Data Practices Act) or federal law or plainly appears irrelevant, the information must be disclosed to the exclusive representative, if so requested. If the Appointing Authority/designee withholds the information on the basis of a provision of the Data Practices Act, the Appointing Authority/designee is required to explain orally, or in writing, the specific statutory section or federal law upon which the denial is based. The exclusive representative must have a consent form signed by the affected employee when requesting personnel data on others that is private under M.S. 13.43 in conjunction with a grievance process, but that the employer did not use as the basis for the disciplinary action, for example, performance reviews. It should be noted that exclusive representatives have the same right to obtain public data as any other party. This right exists even if the data requested appears irrelevant to the grievance at hand or some other business of the exclusive representative. It should be further noted that should the exclusive representative request not public data for reasons not connected to grievances, it must have a consent form signed by the subject employee in order to obtain the data. Disclosure of investigatory data usually takes place once the union has filed for arbitration of the grievance. Should agencies agree to disclose the investigative data earlier in the grievance process, they may do so, however, consultation with the MMB Labor Relations Office is advised. Depending on the seriousness of the case and the amount and type of data involved, the employer may require the union to agree to the terms of a stipulation which addresses who has access to the data and also describes the penalties if the data are released contrary to the provisions of the stipulation. See Appendix A for a sample stipulation. See MMB PERSL #1405 and Appendix K of the labor agreement between the State of Minnesota and AFSCME for additional information regarding the release of personnel information to exclusive representatives regarding contract grievances. Grievance Settlement, Arbitration Award, and Lawsuit Data: Retention of Data - Grievance settlements, arbitration awards, and employment related lawsuit documentation are to be retained in a location other than the employee’s personnel file, for example, a grievance file.


Revision of Personnel Records – Personnel records must be revised to accurately reflect the terms of a grievance settlement or an arbitration award. The records must be revised whenever a grievance settlement or arbitration award rescinds all, or a part of, a disciplinary action, (for example discharge to resignation, 5 day suspension to 3 day suspension, suspension to written reprimand), or total rescission of any disciplinary action. Records that must be revised include:

• The SEMA4 record • The personnel file • All other files such as a supervisory file or disciplinary log containing personnel data on

the employee No comments will be added to the personnel record or SEMA4 record that would indicate why the record was revised or what the previous record contained. State agencies are responsible for making such revisions to an employee’s personnel records including the SEMA4 record. Grievance Settlement Template - A template to be used as a guide when entering into grievance settlements where disciplinary action is rescinded or changed has been developed by MMB Labor Relations. See Appendix B for a copy of the template. Keep in mind that you should contact your Labor Relations Representative for assistance with Grievance Settlements. Release of Data - See section on “Responding to Data Requests” below. Administration of Labor Contract Provisions Regarding Disciplinary Records: Several labor contracts contain provisions about removal of disciplinary records from employee personnel files after a certain time period, for example, the MAPE agreement provides for the removal of a written reprimand after one year. When such records are removed, they shall be retained in a location separate from the personnel file, for example, a grievance file or a separate file in alpha order. No change to SEMA4 records is made when disciplinary records are removed from a personnel file due to the successful completion of the timelines as described in labor contract provisions. Disciplinary records which have been removed from personnel files due to labor contract provisions continue to be public data under the provisions of M.S. 13.43, regardless of where they are kept and must be released if a request is received for “all public data on an individual”. Logs or Records Tracking Agency Disciplinary Actions: Agencies may maintain a tracking or log of all disciplinary action taken within the agency. When such logs contain only summary data and do not contain employee names or other information by which the employee could be identified, the log does not constitute a personnel record or a personnel file nor is it data on individuals. If the log does contain employee names, the log is considered data on individuals and is covered under the provisions of M.S. 13.43.


Responding to Data Requests: Disciplinary Data, Grievance Settlements, Arbitration Awards - Grievance Settlements (along with any attachments) are public data under M.S. 13.43 Subd. 2(a)(6). Arbitration Awards arising under collective bargaining agreements are public data under M.S. 13.43 Subd. 2(b) because the determination constitutes “final disposition of the disciplinary action”. (Note that any private data contained within an arbitration award must still be redacted.) However, should the arbitrator sustain a grievance arising under a collective bargaining agreement and reverse all aspects of any disciplinary action, then the disciplinary action is not public. In the case of a grievance settlement or arbitration award where the discipline has been wholly rescinded, public data would include only the fact that complaints or charges (if any) were made against the employee; the fact that the status of the agency’s handling of those complaints or charges (if any) was a determination that no disciplinary action was taken; and a copy of the terms of any grievance settlement agreement resolving the dispute between the employee and the agency. You should not release the arbitration award in these situations. If an arbitrator changes a disciplinary action, and if someone requests all data related to the final disposition the original discipline must be redacted from the arbitration award and the discipline letter changed to reflect the new discipline. Since discipline has still occurred, the investigation data serving as the basis for the discipline may also be released (see section above “Data on Disciplinary Action”). Where disciplinary action has still occurred i.e. there was no settlement or arbitration award or, the settlement or award did not wholly rescind the discipline, and final disposition has occurred, the agency must review the documentation that was used as the basis for the discipline to determine what can be released (see section above on “Data on Disciplinary Actions” ). Therefore, should an agency receive a request for “all public data on an individual”, the agency must release grievance settlements and arbitration awards (providing that the arbitration award has not had the disciplinary action wholly reversed by the arbitrator) even though these documents are not part of the personnel file. Note that private data, if any, contained in arbitration awards must be redacted. Where the original discipline was rescinded or changed, the original disciplinary letters are not public data since they do not constitute the final disposition of the disciplinary action. Grievance Files - Data maintained in grievance files are subject to the same provisions under M.S. 13.43 as described in this document. The file may contain public, private, and non public data. Therefore, when receiving requests for release of data on an individual, data in the grievance file must be reviewed to determine what may be released dependent on the specifics and timing of the data request. Access by Law Enforcement Agencies – Law enforcement agencies have access to private and confidential data pursuant to M.S. 13.43 Subd. 15 for the purpose of reporting a crime or alleged crime committed by an employee, or for the purpose of assisting law enforcement in the investigation of a crime committed or allegedly committed by an employee. However, agencies should always contact their MMB Labor Relations representative or the Attorney General’s office before releasing data to law enforcement agencies as there are various and complex legal concerns that impact the release of the data.


In General - Responses to requests for public data under M.S. 13.43 may vary depending on the nature of the request. Be careful not to provide more data than has actually been requested. For example, the request may ask for public data contained in the “personnel file”. Such requests would then cover only data contained in the personnel file maintained by the agency. The response would not include data not in the personnel file such as settlements, arbitration awards, or disciplinary records that have been removed from the personnel file due to labor contract provisions. However, should the data request specify all public data on an individual under M.S. 13.43, all public data that exists, regardless of where it is maintained, must be released. At times there may seem to be a conflict as to whether data should be classified as public or private. If this seems to be the case, the agency should make an assessment to determine the most prudent course of action. It is helpful to keep in mind that, of course, you can always release data later, but you can never take it back. In general, you should contact your MMB Labor Relations representative for assistance when responding to data requests involving disciplinary actions. This section is not an exhaustive statement on the administration of personnel data. Please refer to other sections of the Data Practice Manual for additional information about personnel data. If the Appointing Authority/designee withholds the information on the basis of a provision of the Data Practices Act, the Appointing Authority/designee is required to explain orally, or in writing, the specific statutory section or federal law upon which the denial is based. Record Retention: For information on retention of data, please refer to the Human Resources record retention schedule at http://www.mmb.state.mn.us/hr-retention


http://www.mmb.state.mn.us/hr-retention

Appendix A

STIPULATION between (Union) and the

State of Minnesota – (Department) In the Matter of the (specify disciplinary action) of (Name) and the State of Minnesota, (Department) The undersigned Parties agree that they shall abide by the following Stipulation 1. Subject to the restrictions set forth in paragraph 2, below, the State will produce, as

requested by (Union), the following information the State contends may be classified as private personnel data on individuals under Minnesota Statutes, Section 13.43 or confidential investigative data under Minnesota Statutes, section 13.39:

(Specify Data to be provided) 2. The information identified in paragraph 1 above will be subject to the following restrictions:

a. These data shall be used by (Union) solely in connection with the grievances filed on behalf of (Name) and for no other purpose and shall not be disclosed outside these grievance proceedings.

b. These data shall not be disclosed or disseminated by (Union) during the course of

preparation or at any time before or thereafter except to the following: (1) (Union) and its employees, attorneys and agents whose assistance is necessary in

connection with representing (Name), all of whom are bound by the terms of this Stipulation; and

(2) other persons, including (Union) witnesses, whose assistance is required by counsel

in conducting this proceeding, provided that such other person(s) sign an affidavit, prior to disclosure, agreeing to be bound by the terms of this Stipulation and specifically agreeing that they will not disclose any private data disclosed to them outside this proceeding.

c. (Union) agrees to maintain in its possession all copies of the documents produced

pursuant to this Stipulation and to return all such copies to the State at the close of this proceeding.

d. (Union) and the State agree that this Stipulation covers preparation only and does not

cover submissions or evidence to be offered at subsequent hearings.


e. (Union) shall keep all confidential and private data disclosed to them in accordance with the terms of this Stipulation. (Union) and the Employer understand and agree that each will be responsible for its own acts and the results thereof to the extent authorized by law and shall not be responsible for the acts of the other party and the results thereof. The State’s liability shall be governed by the provisions of the Minnesota Tort Claims Act, Minnesota Statutes, section 3.736 et. Seq., and other applicable law.

For the (Union name) ___________________________________________ _________________________ Date For the Employer: ___________________________________________ _________________________ Date


Appendix B

(For assistance with Settlements, contact your Labor Relations Representative)

SETTLEMENT AND RELEASE between [UNION]

and State of Minnesota, [AGENCY]

This Settlement and Release is made and entered into this _____ day of [MONTH], [YEAR] by and between the State of Minnesota, [AGENCY] (hereinafter “Employer”) and [UNION] (hereinafter “Union”) to resolve the grievance filed by the Union on behalf of [GRIEVANT’S NAME] (hereinafter “Grievant”), Union Grievance No. [#]; Employer Case No. [#]. WHEREAS, the Employer received a grievance from the Union dated [DATE]; and WHEREAS, this grievance was appealed to arbitration by the Union but the grievance has not yet been heard by an arbitrator; and WHEREAS, the parties disagree whether a violation of the collective bargaining agreement actually occurred, but desire to avoid the disruption and cost that further proceedings, including arbitration, will bring, and further desire to fully and forever resolve the grievance and all disputes regarding this matter; NOW THEREFORE, the undersigned parties do hereby stipulate to this Settlement and Release in accordance with the following terms: [Sample discharge to resignation language]

1. Prior to, or simultaneous with, the execution of this Settlement and Release, the Grievant shall submit a letter of resignation, acceptable to the Employer, from the Grievant’s employment with the State of Minnesota, [AGENCY], effective at the end of the business day on [EFFECTIVE DATE OF RESIGNATION]. This letter of resignation, labeled as “Attachment A,” is irrevocable and is hereby incorporated into and made a part of this Settlement and Release.

2. The Employer acknowledges receipt of the letter of resignation and accepts the resignation.

Note: the date of resignation is the date after the last working day. [Sample reduction of suspension]

1. The five (5) day disciplinary suspension dated [DATE] shall be changed to a three (3) day disciplinary suspension.

2. The grievant will be compensated for [NUMBER OF HOURS] at the rate of pay that was

in effect on [DATES TO BE PAID] and made whole in regard to all benefits.


Settlement and Release Page 2

Note: Always be very specific in regard to the terms of the settlement. Specify exactly what is meant by “made whole”. Avoid terms that can only be understood within your agency or that could be misinterpreted.

3. The Grievant and the Union do hereby withdraw the grievance referred to herein. This

Settlement and Release shall constitute the final disposition of this grievance brought by the Union on behalf of the Grievant.

4. The parties hereto are entering into this Settlement and Release agreement expressly because they seek to avoid the potential risks and expenses of arbitration.

5. The [AGENCY], no more than thirty (30) days after receiving a fully-executed copy of this Settlement and Release agreement, shall:

• Remove the [DATE] (“dismissal” OR “suspension”] letter from the Grievant’s personnel file and replace it with the [“letter of resignation (attachment A)” OR “revised suspension letter”];

• Remove all documentary material related to the above-noted disciplinary

action from the Grievant’s personnel file held by the Appointing Authority, except for notations necessary for administrative purposes. (However, nothing in this agreement shall preclude the Employer from using such information in defense of any claim against the Employer.); and

• Change the employee’s SEMA4 record, as applicable, to reflect [“that the

reason the grievant’s employment ended was due to voluntary resignation” OR “the terms of the reduced suspension”].

6. The parties understand that this release of information by the Employer about this matter

is governed by Minn. Stat. § 13.01, et sec., (“Minnesota Government Data Practices Act”) and Minn. Stat. § 15.17, et sec., (”Official Records Act”). The parties agree that the specific reasons that this dispute is being settled are: a) to avoid any and all further costs of litigation, and b) to avoid any and all further risks of litigation. The parties agree that the statement of specific reasons in this paragraph for settling this dispute complies with the requirements of Minn. Stat. § 13.43, subd. 2(a)(6). Except as provided under the MGDPA, the parties agree that no public statements or other disclosure of information shall be initiated or made by any of them, their employees, or agents regarding the terms of this Settlement and Release agreement.

7. (If applicable)The Grievant agrees that [HE/SHE] will neither seek nor accept future

employment in any position within the [AGENCY].

8. This Settlement and Release (including any facts and documents related to this dispute) shall not be construed to set a precedent for any other employee’s grievance.

9. This Settlement and Release is not an admission of liability of any kind by the Employer

and no inference shall be made that the Employer has violated the collective bargaining agreement or participated in unlawful or improper conduct of any kind.


Settlement and Release Page 3

10. This Settlement and Release, including Attachment A (if applicable), is the complete and total agreement between the parties.

FOR THE UNION: FOR THE EMPLOYER: ___________________________________ ________________________________ [NAME], [NAME]; Human Resources Director [UNION] [AGENCY] ___________________________________ _________________________________ [NAME] [NAME] [UNION] Labor Relations Representative Labor Relations Bureau Minnesota Management & Budget I understand and voluntarily accept the terms of this Settlement and Release. ______________________________________________________________ [NAME], Grievant Date


Attachment A To: MN [AGENCY] [WORK UNIT/LOCATION & ADDRESS] From: [GRIEVANT’S NAME] Re: Resignation

Effective [DATE], I hereby resign from employment with the MN [AGENCY]. My last day of work will be [DATE]. _______________________________________ ________________

[GRIEVANT’S NAME] Date


Section II Conducting Background Checks


Conducting Background Checks Policy Statement Agencies will conduct background checks as required by statute. In addition, agencies are encouraged to review their selection processes to determine positions where the inclusion of background checks may be necessary or beneficial. Conducting background checks as part of the hiring process can result in better hires with fewer post hire problems. Background checks are strongly recommended when job duties involve the health, safety, or welfare of clients or the public. This is to maximize the agency’s opportunity to uncover information that would relate to your determination as to whether the applicant poses any risk to the health, safety or welfare of clients or the public. Definitions Background Check: A review of an applicant’s background for the purpose of determining their suitability for employment. Such review may include an analysis of public and private documents; contact with former employers; verification of education and training, employment history and/or licensure; personal and professional references; criminal history checks; and other pertinent information.

Reference Check: To request verification and/or information from previous employers and other sources about an applicant’s job history and/or job performance. Employment Verification: Verification of an applicant’s employment history. Criminal History Check: A check of an applicant’s criminal history records through law enforcement sources.

Developing an Agency Background Check Policy and Procedure Agencies who conduct any type of Background Checks shall have a policy and procedure covering the following:

• A policy or purpose statement stating why background checks are being conducted • A description of the process used to determine what types of background checks will be

conducted for specific positions (to be done prior to the announcement of any job vacancy)

• A listing of the positions for which background checks are required for example, interns, volunteers, specific job classifications and/or positions with responsibilities related to certain agency programs or information. Agencies may decide to conduct some type of background check for all hires.

• A description of the background check to be done for each type of position i.e. reference check, licensure verification, criminal history check, etc.

• Roles and responsibilities for those involved in the background check process i.e. hiring supervisors, HR office, etc.


• The procedures to be used in conducting the background check including how and when data needed for the background check is collected from the applicant, required forms including Tennessen Warning notices, Informed Consent forms, etc.

• Standards for how the background information will be used when making hiring decisions

• The method(s) used to notify applicants that a background check is a part of the hiring process i.e. the job posting* or notification during the hiring process

• Procedures for maintenance of the background check data (see “How to Maintain Data” further on in this section).

Job Postings: It is advisable to include background check requirements in job postings. The job posting should describe the type of background check that will or may be conducted, at what point in the selection process the background check will be conducted, and that the background check will follow all provisions of M.S. 364. Avoid “boilerplate” language that does not give the applicant accurate information about the background requirements for the position for which they are applying. If you are only conducting routine employment reference checks, it may not be necessary to include this information in job postings. Agencies should utilize the following procedural information when developing background check policies. Procedures ► WHY We Conduct Background Checks • The appointing authority is responsible for verifying all job-related information on prospective

employees for civil service positions. (Minn. Rules pt. 3900.7500)

• Background checks also assist in identifying the best qualified candidate(s) and may be

conducted:

relatively early in the hiring process to assist in identifying a smaller group of finalists, or at a later stage, to help select one candidate from among finalists, or after a final selection has been made, but before an offer of employment, as a means of verifying job-related information. Exception: A public employer may not inquire into or consider the criminal record or criminal history of an applicant for public employment until the applicant has been selected for interview by the employer. (M.S. 364.021(a))

• Background checks are required in some circumstances. For example:

Psychotherapists - Under M.S. 148A.03, an employer should inquire of former employers regarding occurrences of sexual contact between the candidate and his/her patients or former patients. Failure to do so may result in liability in an action for sexual exploitation.


Peace Officers – Under M.S. 626.87, agencies who hire licensed peace officers must conduct background investigations that meet the Minnesota Board of Peace Officer Standards and Training (POST) standards and established security standards for access to state and national computerized record and communication systems.

• License verification is required in some circumstances. For example:

Licensed trades and professions - If performance of the assigned duties requires licensure, verification of the candidate's license should be obtained before an offer of employment.

► WHO Should Conduct Background Checks

Staff conducting background checks should be familiar with and trained in the implementation of the data practices policy. It is recommended that human resources staff conduct background checks except where other agency personnel may have the required training and expertise to do so. Agencies who have supervisors conduct all or part of background checks should ensure that the supervisors are well trained and that their work is monitored by human resources staff. Agencies may enter into third party contracts to conduct all or a portion of the background check. Agencies must remember that criteria previously determined in their background policy and procedures must be applied to any work being done by a contractor including what information should be collected, who has access to the data, how the data is used, and how the data is maintained.

► WHAT Information May be Collected

You may ask any questions which are not discriminatory and which are related to the job for which the applicant is being considered. As a general rule, the following information can be assumed to be job-related for all jobs.

• dates of employment • job duties • starting and ending salaries • job title(s) • job-related performance evaluations • records of discipline

Dependent upon the job requirements, it may be desirable or necessary to collect other information including:

• verification of licensure including driver license* • verification of education and training • criminal history records** • credit records • information specific to the job duties such as income tax checks


*See the Statewide Policy on Driver License and Record Checks for requirements regarding driver license checks.

**Minnesota Statutes Chapter 364, Criminal Offenders Rehabilitation Act, prohibits the disqualification of candidates for public employment because of a prior criminal conviction unless the conviction relates directly to the position or employment sought. (See additional information on criminal history checks later in this section.)

Requesting private data

- from a public employer requires an informed consent. - from a private employer requires an informed consent when requesting the following

(M.S. 181.967 Subd.3): ► written employee evaluations conducted before the employee’s separation from the

employer and the employee’s written response, if any, contained in the employee’s personnel record

► written disciplinary warnings and actions within 5 years prior to the authorization and

the employee’s written response, if any, contained in the employee’s personnel record

► written reasons for separation from employment

(See Authorization for Release of Information form (Appendix A) at the end of this section.) NOTE: Regardless of where data is collected from, once the data is in your custody, it becomes government data and the MGDPA restrictions on release of that data apply. If your agency has unique issues related to the collection of data for purposes of conducting background checks, for example in the selection of law enforcement personnel, we recommend that you include specific information in your background check policy and procedures to address those needs. Legal Claims: M.S. 181.967 limits an employee’s legal claim against an employer for disclosing employment related information about a current or former employee to a prospective employer or employment agency provided that data is disclosed according to the provisions of the statute.(as stated above). In particular subdivision 3(a)(5) of M.S. 181.967 limits legal claims when an employer discloses information about “acts of violence, theft, harassment, or illegal conduct documented in the personnel record that resulted in disciplinary action or resignation and the employee’s written response, if any, contained in the employee’s personnel record.” Again such disclosure must be done according to statutory provisions in M.S. 181.967. The protection against legal claims is limited in that it does not apply to any action involving an alleged violation of the Minnesota Human Rights Act, Minnesota Chapter 363A. Further, the employee may have a legal claim against a current or former employer if s/he can prove by clear and convincing evidence that the information was false and defamatory; and the employer knew or should have known the information was false and acted with malicious intent to injure the current or former employee. (See MMB PERSL #1384)


► WHAT Information Should NOT be Collected

• NEVER request information about an applicant's protected group status except as stated in the section on “Affirmative Action and Equal Opportunity”. The Minnesota Human Rights Act, Chapter 363A, makes it an unfair discriminatory practice to seek or obtain from any source, information that pertains to the following unless it can be shown to be a bona fide occupational qualification or unless such information is required by law (in which case a proper Tennessen warning notice is required when collecting such data). With the same exceptions, it is also illegal to base a hiring decision on these factors.

race marital status color status with regard to public assistance creed membership or activity in a local commission religion disability national origin age sex sexual orientation (M.S. 363A.08, subd. 2

• NEVER collect information regarding union affiliation and activity.

• NEVER collect genetic information. Under Title II of the Genetic Information Nondiscrimination Act (GINA), it is illegal to discriminate against employees or applicants because of genetic information. Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder, or condition of an individual’s family members. Family medical history is included in the definition of genetic information.

• NEVER collect information regarding an individual's HIV infection status.

• NEVER collect information you are not prepared to provide to the individual applicant.

The applicant has access to any information you collect. You cannot ensure that your communication with a current or former employer will be "confidential."

► WHAT Information May Be Given to Background Sources

As a general rule, provide only public data that is relevant to your request for information. The guidelines for release of information are the same whether you are conducting a background check or responding to a request for information. Private data may be provided to background sources when necessary, for example, when doing criminal history checks. When private data is provided, you must have the applicant’s consent to release the data to the former employer or background source. A Tennessen warning notice is required when collecting private data from the applicant for the purpose of conducting background checks. (See section on “Collecting Private and Confidential Data” for information on Tennessen warning notices.)


► HOW to Conduct a Background Check Background checks may be conducted by phone or in writing depending on the nature of the information you are requesting. Have the applicant complete the proper forms for collection of private data if necessary. Please note that no private data on the finalist may be given to employment reference contacts unless a Tennessen has been provided to the finalist informing them that private data is being used for this purpose, for example when conducting Criminal History Checks. (See “Required Forms” below) The name of an applicant is public once they become a finalist therefore you may give the name to a background source at that point in time without a Tennessen. Required Forms (forms may include): • Appendix A at the end of this section. Appendix A (“Applicant Authorization for Release

of Information”) is a form which contains informed consent language and can be used when conducting employment references checks on finalists for job vacancies where you intend to request private data. Some employers always have applicants complete an informed consent regardless of the type of data (public or private) being requested to avoid any legal risk. Note: When conducting a background check by phone the informed consent form (Appendix A) should be faxed to the background source prior to the telephone interview.

• A Tennessen warning notice to conduct a Criminal History check (see paragraph on Criminal History checks further on in this section).

• A Vehicle Use Agreement form to conduct a driver license check (see Statewide Policy on Driver License and Record Checks).

Additional sample reference check forms (Appendices A-E) are included at the end of this section. Keep in mind that you may want to change or add questions to the reference check forms depending on the needs of your agency, for example you may want to request current salary information. Use the same method for each applicant. When that is not possible or practical, make every effort to standardize the responses you collect. In either case, the following guidelines apply.

1. Identify yourself and your organization. Indicate that you are conducting a background

on a job applicant who the background source has knowledge of or for whom they have maintained data.

2. Identify the applicant and ask that someone familiar with the applicant's work or

background answer your inquiry. You may request that the applicant provide you with the name of their previous supervisor or other employment contact to be used when conducting the background check. You may also request that the applicant give you any previous names that may have gone by to facilitate a more accurate response from the employment source (see Contact Information form (Appendix E) at the end of this section).


3. Document the identity (including name, job title, and work relationship to the applicant) of the person who responds to your questions.

4. Ask the same job-related questions for each applicant. 5. When conducting the background check by phone, record actual responses rather than

your interpretation of the responses; sign and date the document. 6. Maintain a single file for all the data you collect on all applicants for the vacancy

(including the appointee). This file should be separate from the employee's personnel file.

Note: At times, background sources will volunteer non job related information or private data. You should not take notes on, nor use such information and should inform the sources that such information should not be provided.

► BACKGROUND Check Specifics

CRIMINAL History Checks: Criminal History checks may be done as part of the background check process. A criminal history check will provide information about an applicant’s criminal record. Criminal History checks require collection of private data from the applicant so appropriate Tennessen forms must be used. Sample forms are included as Appendix F and F1 at the end of this section. These forms comply with M.S. 364.01-364.10. Agencies may need additional criminal history information, for example fingerprint checks, depending on the position they are hiring for, and should make changes to the template as necessary. (See section on “Collecting Private and Confidential Data” for additional information.) Depending on the level of criminal history information required, criminal history data can be obtained from the Minnesota Bureau of Criminal Apprehension (BCA). Information about the various options may be obtained on the BCA’s public website at www.bca.state.mn.us at the Minnesota Justice Information System (MJIS) link or by calling the main telephone number, 651-793-7000. Predatory Offender checks and fingerprint checks are also available from the BCA. You may also use the public court information which contains information from both the criminal and civil courts in Minnesota, available at www.mncourts.gov/publicaccess Agencies who conduct criminal history background checks should familiarize themselves with all the provisions of M.S. 364. Some important points to keep in mind include: • A public employer may not inquire into or consider the criminal record or criminal history

of an applicant for public employment until the applicant has been selected for an interview by the employer. (Certain agencies with a statutory duty to conduct a criminal history background check e.g. the Department of Corrections are exempted.) (This provision does not prohibit a public 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.)

• Prohibits public employers from considering non-conviction records and expunged records.


http://www.bca.state.mn.us/

http://www.mncourts.gov/publicaccess

• Prohibits public employers from not hiring someone based on their criminal record if the conviction does not directly relate to the position being sought. In determining if a conviction directly relates to the position being sought, the hiring authority shall consider 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, and 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. (M.S. 364.03)

• Prohibits a public employer from disqualifying someone for a position being sought if they can show competent evidence of sufficient rehabilitation as described in M.S. 364.03 subd. 3

• Requires public employers who reject an applicant solely or in part because of the applicant’s criminal record to follow specific notification requirements. (M.S. 364.05)

• Violation of the rights contained in M.S. 364 constitute a violation of a person’s civil rights.

• M.S. 364.09 lists several exceptions to the provisions of M.S. 364 including certain fire protection and law enforcement agencies. Consult M.S. 364.09 for a complete list of exceptions.

FORMER or Current State Employees: As part of any background procedure, it is recommended that agencies check SEMA4 records to determine if job applicants are current state employees or have previous state employment. If so, a background check should be conducted on these applicants as would be conducted on any applicant. Have the applicant complete the “Authorization for Release of Information” form (Appendix A)included at the end of this section and submit to the appropriate agency or agencies to obtain data including performance reviews and disciplinary actions. Make a specific request for all public information on the applicant including finalized grievance settlement agreements and arbitration awards related to prior discipline. CURRENT Agency Employees: Agencies should review employment related data contained within the agency on applicants who are current agency employees. They may also conduct other background check activities as would be conducted for any applicant. However, the agency must keep in mind that the results of such background checks pertain only to the selection process for the job vacancy. The background information obtained should not be applied to the employee’s current job unless such information reveals a violation of mandatory terms and conditions of employment i.e. the applicant’s current job requires that they have a valid driver’s license and the background check reveals that they do not have such a license. CONTRACTORS, Volunteers, Interns, or other non employees: Agencies may conduct background checks on non employees for various reasons. For example, since these individuals often have access to buildings and electronic systems, agencies may want to conduct a basic criminal history check. Agencies may also conduct checks similar to those conducted for employees depending on the nature and location of work to be performed by the non employee. Policies and procedures for background checks on non employees should be included in the agency background check policy.


USE of Internet Searches and Social Networking Sites: When performing internet searches including searches of social networking sites such as “Facebook” or “Linked In” for background information on applicants or current employees, agencies should be aware of both the risks and benefits. Agencies should seek advice and exercise caution when conducting internet searches. Staff should be well trained in using electronic sources and in the legal uses of information gained from internet searches. For example, a search may identify the protected group status of an applicant which the employer has no need to know during the selection process. Knowing such information, even if not used, can lead to discrimination claims. It is advisable to have HR staff or a third party conduct such searches so that only job related information is relayed to the hiring supervisor. Advice is available from your MMB staffing representative. Appendix G at the end of this section contains tips for conducting internet searches and using social networking sites. NOTIFICATION to Applicants: Should an applicant be removed from consideration for employment due to the results of a background check, they do not have to be notified of the specific reason other than as required by M.S. 364.05 in regard to criminal history checks. However, keep in mind that background check data is available to the applicant upon their request (see paragraph below).

► HOW to Maintain the Data

The data collected from a background check is private data on the applicant. That means it is accessible to the applicant and generally to no one else except those within the agency whose jobs reasonably require access; that means those whose review of the data is necessary to make the hiring decision. Background check data may be maintained along with other documents on the selection process for the position or in separate background check files. It should not be kept in personnel files. Under the Human Resources Records Retention schedule for the state, selection data is retained for four (4) years. This would also apply to background check data, unless there are other statutes that apply to specific types of data you may be collecting. Remember that the data is personnel data under M.S. 13.43 and it is accessible to the applicant upon request. You cannot guarantee to anyone who provides a reference that the information will remain confidential. The data is also accessible to anyone requesting private data on an individual with an appropriate informed consent signed by the individual. When responding to such requests you must exclude any non public data not on the subject of the data.



Appendix A

Minnesota Department of ____________________ Applicant Authorization for Release of Information

from Current and Former Employers Name: ______________________________________________________________________ (Please Print) Other Names Used in Prior Employment: ___________________________________________ I am applying for a position of employment with the Minnesota Department of ___________. I authorize my current and former employers to orally or in writing make available to representatives of the Minnesota Department of ____________ the following job-related data if requested: contents of my personnel file, information regarding my job performance, dates of employment, salary information, job title(s) and responsibilities, nature of any disciplinary action, reasons for separation, eligibility for re-employment, and other job-related data that may be maintained by my current and former employers. This authorization does not extend to any medical records about me that may be maintained by my current and former employers. I understand that I may request that certain data not be released to (Dept. Name). However, I also understand that restricting the release of certain job-related information about me may result in my no longer being considered for employment by (Dept. Name). I understand that I may discuss this further with a (Dept. Name) personnel representative if I have any questions prior to completing this form. With the above understanding, I place the following restrictions on the information that may be released by my current and former employers: ____________________________________________________________________________ ____________________________________________________________________________ I understand that the purpose of permitting (Dept. Name) to obtain job-related information about me is to determine my suitability for employment with (Dept Name). I understand that any data received by (Dept. Name) will be treated as private data, and therefore access to the data will be limited to individuals within the (Dept. Name) and their representatives whose job duties reasonably require access, to myself and to any individuals authorized by me to receive the data, to the Minnesota Department of Management and Budget for assistance in employment decisions, or if required by court order or authorized by state or federal law. I hereby release my current and prior employers from any liability for any damage that may result from furnishing job-related information about me as requested from (Dept. Name). For further information regarding liability, Minnesota employers are directed to Minnesota Statutes §181.967, which states that no action may be maintained against an employer by an employee or former employee for the disclosure of information specified in §181.967, unless the information is false and defamatory and the employer knew or should have known the information was false and acted with malicious intent to injure the current or former employee. For private Minnesota employers, this pertains to disclosure of the following: dates of employment; compensation and wage history; job description and duties; training and education provided by the employer; acts of violence, theft, harassment, or illegal conduct documented in

the personnel record that resulted in disciplinary action or resignation; and with written authorization by the current or former employee - written employee evaluations, written disciplinary actions occurring within 5 years prior to the employee's authorization for release, written reasons for separation, and any employee written responses. For public Minnesota employers, this applies to the disclosure of all public personnel data and to the following private personnel data under M.S. §13.43 if the current or former employee gives written consent to the release of these data: written employee evaluations conducted before the employee's separation and the employee's written response, if any; and written reasons for separation from employment. This authorization to release data as specified above expires immediately following release of the requested data by my current and former employers or after the position I am applying for has been filled, whichever occurs first. I understand that I may withdraw my authorization at any time, but that if I do withdraw my authorization, it will not affect any data that was released prior to my withdrawal. __________________________________________________ Date: __________________ Signature


Appendix B

TELEPHONE REFERENCE CHECK (SAMPLE) (Send informed consent e.g. Appendix A by fax prior to telephone interview)

______________________________________________________________________________ NAME OF APPLICANT

______________________________________________________________________________ PERSON ANSWERING QUESTIONS BELOW POSITION OR TITLE

______________________________________________________________________________ COMPANY CITY AND STATE TELEPHONE NUMBER

______________________________________________________________________________ PERSON CONDUCTING REFERENCE CHECK DATE (Applicant) has applied for a position as a (job title) with the Minnesota Department of ___________. This applicant has indicated that he/she is/was employed with your organization. I am conducting a reference check on (applicant) and would appreciate your assistance by answering a few questions. 1. Dates of employment: From: _______________ To: _______________ 2. Title and duties: 3. How well did this individual typically perform his/her job duties? Please provide copies of past

performance reviews. 4. (If relevant to the job) How well did this individual relate with supervisors, co-workers, customers? 5. Would you categorize this individual’s attendance as satisfactory or unsatisfactory? Please provide

information regarding sick leave usage (non-FMLA qualifying) for the past year. 6. Was any disciplinary action taken against this employee? If so, what disciplinary action was taken

and what were the reasons for the action? 7. (If a former employer) did s/he leave your employment voluntarily?

If not, what was the reason? 8. Would you rehire this individual? 9. Would you recommend this individual for employment with our agency? Do you have any additional comments?


Appendix C

SAMPLE REFERENCE CHECK LETTER RE: Reference Check on (Applicant)___________________________________________________________ Dear : (Applicant)______________ has applied to us for a position as a (Job Title)_____________. The applicant has indicated that they (are an)(have been an) employee of your organization. Please provide the information indicated and return the form to us in the enclosed envelope as soon as possible. Attached is a copy of the informed consent form signed by the applicant. If you have any questions or wish to discuss this request, please contact me at _______________. Thank you for your assistance. Sincerely,



Appendix D

EMPLOYEE REFERENCE CHECK (SAMPLE)

Name of employee ____________________________________________________________________ Job title ________________________________________from _______________ to _______________ mo/yr mo/yr Major duties _________________________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________ Did the employee typically perform these duties satisfactorily?

Yes __________ No __________ Please attach copies of past Performance Reviews How well did this individual relate with supervisors, co-workers, customers?

________________________________________________________________________________

________________________________________________________________________________ Would you characterize this individual’s attendance as

Satisfactory_______ or Unsatisfactory_______? Please provide information regarding sick leave usage (non-FMLA qualifying) for the past year.

Was any disciplinary action taken against this employee? If so, what was the disciplinary action taken and what were the reasons for the action? ____________________________________________________________________________________ Did the employee leave your organization voluntarily?

Yes __________ No __________

If not, what was the reason? (e.g., layoff, discharge for cause, etc.) ________________________________________________________________________________ ________________________________________________________________________________

Would you rehire this individual? Would you recommend this individual for employment with our agency? Name of person completing this form ______________________________________________________ Phone Number _____________________ Title ____________________________________________ Organizational Relationship to Former Employee:

Supervisor Personnel Office Other

Appendix E Minnesota Department of ______________

Contact Information for Current and Former Employers Name (including any previous names): _____________________________________________ In accordance with my authorization for the Department of ______________ to contact my former employers, I am providing the following contact information. Do you object if we contact your current employer: ____Yes ____No Dates of Employment: From ___/___/___ to ___/___/___ Employing Firm: _______________________________ Job Title: _______________________ Address: ____________________________________________________________________________ Supervisor: ________________________________ Supervisor Phone: ___________________ Dates of Employment: From ___/___/___ to ___/___/___ Employing Firm: _______________________________ Job Title: _______________________ Address: ____________________________________________________________________ Supervisor: _________________________________ Supervisor Phone: __________________ Dates of Employment: From ___/___/___ to ___/___/___ Employing Firm: _______________________________ Job Title: _______________________ Address: ____________________________________________________________________ Supervisor: ________________________________ Supervisor Phone: ___________________ Dates of Employment: From ___/___/___ to ___/___/___ Employing Firm: _______________________________ Job Title: _______________________ Address: ____________________________________________________________________ Supervisor: _________________________________ Supervisor Phone: __________________

(Please use additional sheets if necessary) I certify the above information to be true and accurate to the best of my knowledge:

_________________________________________________ _______________________ Signature Date


Appendix F

Minnesota Department of ______________ Criminal Background Release Form

A criminal background check is required for the position you have applied for at the Department of ___________. This criminal background check is conducted as a continuation of the application process prior to hiring an individual, to determine if that individual has been convicted of any crime that directly relates to the duties of the position. Applicants being interviewed for this position are asked to provide the information requested below so that a criminal background check can be done on applicants that the Department is interested in hiring for the position. We are asking that you provide the below information and that you authorize the Department of __________ to send this information to the Minnesota Bureau of Criminal Apprehension (BCA) for use in conducting a criminal background check. Your signature on this form authorizes the Department of __________ to submit the information you provide below to the BCA if the Department is interested in hiring you and to request a search of BCA's criminal history data base for any records pertaining to you. Your signature also authorizes the BCA to send any criminal history record found on you back to the Human Resources office at the Department of __________. If you have questions about anything on this form, or if you would like more explanation, please feel free to contact _____________, Human Resources Representative at the Department of ___________ at (phone number and e-mail address). You are not legally required to provide the below information or to authorize its use as described above. However, failure to provide this information (except for race/ethnicity, which is optional) or authorize its use as described above may result in the Department's not being able to do a criminal background check on you, which in turn may result in your being excluded from consideration for employment. Further, although providing your race/ethnicity is optional, it is helpful in ensuring that any criminal background records obtained are in fact yours. If you do provide the requested information, a criminal background check will be conducted if the Department decides that they are interested in hiring you. A criminal conviction will not automatically remove you from consideration for employment; however, if the Department determines that a conviction directly relates to the position and to your ability to perform the job, you may be disqualified from employment for this position. Access to the information you provide as well as to the information we receive from the BCA will be limited to individuals within the Department of __________ and their representatives whose job duties reasonably require access, to the BCA for the purpose of conducting a criminal background check, to yourself, and to any individuals for whom you provide written consent. Additionally, this information may be released without your consent Minnesota Management & Budget (Minn. Stat. Ch. 43A), if required by court order, or if authorized by state or federal law. Please provide us with the information requested below. Please Print. ___________________________ ___________________________ ________________________ Last Name First Name Middle Name List previous names used: ____________________________ Date of Birth: ___________________ ____________________________ Gender: _______________________ ____________________________ Race/Ethnicity: __________________ (Optional) *********************************************************************************************************************************** I certify the above information to be true and accurate to the best of my knowledge. I understand that providing false information may subject me to the penalty provisions of M.S. $43A.39. I further authorize the Minnesota Department of ___________ to release to the Minnesota Bureau of Criminal Apprehension (BCA) the above information for the purpose of performing a criminal background check on me if the Department is interested in hiring me. I also authorize the BCA to disclose all criminal history record information on me to the Department of __________ so that they may assess whether a prior conviction directly relates to the position I am applying for and to my ability to perform the job. Any authorization by me to release of the above data to the BCA and for the BCA to release criminal background records on me to the Department of ____________ expires immediately following release of these data. _________________________________________ ___________________________________ Signature Date


Appendix F1

Minnesota Department of ______________ Criminal Background Disclosure Form

A criminal background check is required for the position you have applied for at the Department of ___________. This criminal background check is conducted as a continuation of the application process prior to hiring an individual, to determine if that individual has been convicted of any crime that directly relates to the duties of the position. In addition to conducting a criminal background check, the Department also asks applicants being interviewed for this position to complete this Criminal Background Disclosure Form to ensure that the Department obtains complete and accurate criminal history information and to verify any records received from the Minnesota Bureau of Criminal Apprehension (BCA). You are not legally required to provide the information requested below; however, failure to disclose a criminal conviction may result in disqualifying you as a candidate for employment. Any information you disclose regarding a criminal conviction will be used solely to determine if the conviction directly relates to the position you have applied for and to your ability to perform the job. A criminal conviction will not automatically remove you from consideration for employment. However, if the Department determines that a prior conviction does impact your ability to perform the job, you may be disqualified from employment for this position. Access to the information you provide will be limited to individuals within the Department of __________ and their representatives whose job duties reasonably require access, to yourself, and to any individuals for whom you provide written consent. Additionally, this information may be released without your consent to the Department of Minnesota Management and Budget (Minn. Stat. Ch. 43A), if required by court order, or if authorized by state or federal law. Please provide us with the information requested below. Please write legibly.

Have you been convicted of a felony, gross misdemeanor, or misdemeanors for which a jail sentence may have been imposed? (Do not include petty misdemeanors.)

Yes____ No____ If yes, please provide a complete chronology of your offense history. Include the type of offense, county, state, date and final disposition (i.e. jail time, fine, probation, etc.).

I certify the above information to be true and accurate to the best of my knowledge. I understand that providing false information may subject me to the penalty provisions of M.S. §43A.39. _________________________________________ ___________________________________ Signature Date _________________________________________ Print Name



Appendix G Tips for using Internet Searches and Social Networking websites for background checks: ► Have a background policy/procedure in place which covers your agency procedures for reviewing

applicant social networking sites

► Determine specific job qualifications for the vacancy before you review social networking sites

► Collect and use only information that is related to the job qualifications. It may be preferable to have a third party conduct the review and give you only the job related information so as to reduce your risk of any legal action.

► Ensure that staff who conduct reviews of social networking sites are well trained.

► Staff other than hiring supervisors should review the sites and give only job related information to the hiring supervisor.

► Publicize your intent to conduct a background check in the job posting and include the fact that you will be reviewing social networking sites.

► Don’t look at, or record, information that is non job related.

► Access only information that is available to everyone. Do not request passwords or try to circumvent privacy rules to obtain information.

► Be aware that not all information you may find is accurate. Internet searches may come up with false information for a variety of reasons, for example, identical names. Further, the applicant may not be responsible for information posted to their social networking site.

► Be aware of M.S. 181.938 Subd. 2 which states that an applicant may not be rejected for use of lawful consumable products (includes alcohol, food, tobacco) off employer premises during non work hours.

► The Fair Credit Reporting Act does not apply when the employer itself is conducting the background check vs. having the check conducted by a third party.

Section III Responding to Personnel

Data Requests


Responding to Personnel Data Requests This section addresses: • data requests from prospective employers, creditors, and financial institutions for information

about an individual's current or former employment with your agency. • data requests that are not related to employment references ► WHY We Respond to Data Requests

We are required by statute to provide public data to anyone who asks for it. We are also required to provide private data to the subject of that data, and to others with the informed consent of the data subject.

(M.S 13.03, subd. 3) (M.S. 13.04, subd. 3) (Minn. Rules pt. 1205.0400, subp. 2) ► WHO is Responsible for Responding to Data Requests

We recommend that all requests for personnel data be referred to the agency's human resources office and that specific staff be designated to perform this responsibility. All staff responsible for responding to requests for personnel data should be thoroughly familiar with the law and with the information in this manual.

All supervisors and managers should know that requests for personnel data - oral and written - should be referred to the human resources office or designated agency staff person.

► WHAT Information Should Be Provided

Public

Except in those circumstances described below, provide only that information which is public and provide only that information which has been requested.

This means that if requested, you must provide the information noted in M.S. 13.43, subd. 2 on current and former employees (except undercover law enforcement officers), volunteers, and independent contractors of a government entity. NOTE: M.S. 13.43, subd. 5(a) limits the data that can be provided related to employees of secure treatment facilities, state correctional facilities, and Department of Corrections’ employees directly involved in supervision of offenders in the community. If data is requested on these types of employees, please review this statute before providing any data.


Private

Except where noted below, private data on a current or former employee may not be provided unless the subject of the data has given informed consent, in writing, to the release of specific data to a specific party. This also applies when responding to data requests for private data from other state agencies.

This means that unless the employee specifically authorizes release of other information, you may provide only that information which the law classifies as public (see Appendix B in section on Data Classifications).

This means that unless you have an employee's informed consent, you may not provide information often sought in a employment related data request such as performance reviews or other information which evaluates job performance, information about reasons for use of sick or other medical leave, and information about disciplinary action which has not reached a final disposition (for information on final disposition, see Appendix B in section on Data Classifications).

There may be circumstances within your agency in which you are asked to provide supervisors with private data about employees whom they do not supervise. Remember, private data may be disclosed within an agency only to those whose jobs reasonably require access to such data. In some instances, supervisors may have a need to know private data on employees they do not supervise, for example, when interviewing an employee for another position or when conducting an investigation.

If you are uncertain how to proceed in any of these situations, contact MMB or the Attorney General's Office for advice.

Informed Consent

• If the requestor provides a valid informed consent form signed by the subject of the data,

you may disclose private data.

• However, you may provide only that information which the subject has authorized you to release. For example, a consent to release performance reviews does not authorize you to release other private data such as medical information.

• In addition, you should provide only that information which has been requested and for

which the subject has consented to disclosure.

• You should provide data only to those to whom the subject specifically has authorized disclosure. A consent to release form directed to Employer A does not authorize you to release private data to Employer B.

• An informed consent authorizes you to release certain private data which you have

already collected about an employee. However, it does not require you to collect or create additional data or documents.

(See “Informed Consent” section in this manual for additional information and sample forms)


Laws Requiring Disclosure

Under M.S. 148A.03, an employer or former employer of a psychotherapist should respond to requests by prospective employers concerning the occurrence of sexual contact between the psychotherapist and the psychotherapist's patient(s). An employer who fails to do so may be liable in an action for sexual exploitation. Agencies that employ psychotherapists should have a policy and procedures to address their obligations under the law.

► HOW to Respond to Data Requests

The following are recommended practices for responding to data requests:

1. Refer data requests including employment checks, reference inquiries, and other requests for personnel data to the human resources office.

2. Always ensure that the subject of the data has provided a valid informed consent before

providing private data (see sample forms in “Informed Consent” section). 3. In general, you may respond to reference checks orally or in writing. We strongly

recommend however, that all communications involving the release of not public data be in writing.

4. Maintain a record of your contacts including:

a copy of the written request for information; a copy of the informed consent form, if any; a copy, or your notes, of what data was requested; a copy of, or your notes recording, your response; the name, address and title of the requester; the dates of each contact; your notes of any discussion or any activity related to the request.

5. Maintain the record in the employee's personnel file or you may also have a separate

filing system for all such requests. The information contained in this record is classified as private data and is accessible to the employee. At the same time, it is not accessible to anyone else except those within the agency whose jobs reasonably require access to that data.

6. Provide only factual or documented information. Do not provide evaluative or subjective

comments, for example, a personal opinion about the employee.

7. Answer only the questions which are asked. Do not offer information which has not been requested.

8. Do not answer questions of a personal or speculative nature regarding, for example, the

employee's personality or appearance.

9. Generally, do not answer "questionnaires" which ask you to rate the employee in various areas.


10. Do not answer the question, "would you rehire the employee?"; this is too subjective. You may say something like “the employee is eligible to reapply for employment.”

11. So that prospective employers do not draw a negative inference from your failure to

provide more information when you receive a request without a proper informed consent, explain that the MGDPA prohibits you from releasing private data and authorizes you to release only public information.

12. You may want to develop a form letter for responding to data requests. This will ensure

that responses are uniform for all employees and that agency policy is followed.

13. Have a written policy and procedure on responding to personnel data requests outlining responsibilities, procedures, how to maintain documentation, monetary charges for preparation of data requests, and who has access to the data. This policy should include procedures governing access to personnel files within the agency.

► DATA Requests Not Related to Employment References

Requests from Individuals to Release Private Data on Them to Other Entities You may receive data requests from individuals who want you to release private data on them to other entities. The individual must complete a consent to release form in order for you to release the data. (See section on “Informed Consent” for sample form.)

Requests regarding Unemployment Insurance The Department of Employment and Economic Development (DEED) is authorized under M.S. 268.19 subd. 2(a) to obtain private data related to an employees’ separation from employment. Further, M.S. 13.43 subd. 13 says that private personnel data must be disclosed to DEED for the purpose of administration of the unemployment benefits program under chapter 268. Agencies are responsible for responding to requests from DEED for information related to unemployment insurance claims. However, agencies may use their discretion when determining what data will be provided (unless a subpoena has been issued for the data).

Requests from Employees for Access to Data on Themselves Employees have access to all private and public data on themselves. M.S. 181.961 subd. 1 provides that, upon written request by an employee, the employer shall provide the employee with an opportunity to review the employee’s personnel record. Such review may be limited to once every six months.

In regard to former employees, M.S. 181.961 subd. 1 provides that, an employee may review their personnel record once each year after separation for as long as the personnel record is maintained.

Upon written request of the current or separated employee, agencies must provide a copy of the personnel record to the employee at no cost.

NOTE: Various labor contracts contain negotiated language giving employees rights to a certain number of copies of documents from their personnel records without a charge.


Requests From Exclusive Representatives M.S. 13.43 subd. 6 provides that personnel data may be distributed to labor organizations to the extent that the responsible authority determines that the dissemination is necessary to conduct elections, notify employees of fair share fee assessments, and implement the provisions of 179 and 179A. Personnel data may be disseminated to labor organizations and to the Bureau of Mediation Services to the extent the dissemination is ordered and authorized by the commissioner of the Bureau of Mediation Services. Also, see section on “Data on Employee Investigations, Discipline, Grievance Settlements & Arbitration Awards”.

Requests from Department of Administration Workers’ Compensation Program M.S. 13.43 subd. 18 requires that private personnel data of state employees be disclosed to the Department of Administration for the purpose of administration of the workers’ compensation program as provided in chapter 176.

► DENIAL of Data Requests

If you determine that a data request must be denied due to the fact the requestor is not entitled to access the data they are requesting, you must notify the requestor of this determination either orally, at the time of the request, or in writing as soon after that time as possible. You must cite the specific statute or law upon which you have based your determination. M.S. 13.03 subd. 3(f).

► CHARGING for Data Request Responses

M.S. 13.03 subd. 3(c) and M.S. 13.04 subd. 3 allow a government entity to charge for responding to data requests. The type of charges depends on whether or not the request is being made by the subject of data. Documents from the Department of Administration provide specific information on charges authorized when the data requester is not the subject of the data and when the data requester is the subject of the data. (See links provided below)

http://www.ipad.state.mn.us/docs/copyfees1303.pdf


Employees have the same rights as anyone else in accessing or requesting government data under M.S. 13.03 and 13.04. The provisions of these statutes in regard to charging for copies of data may also be applied to data requests by employees.

NOTE: Access to data also differs depending on the data requester. The chart below illustrated these differences.




Access: Data Subject vs. Public Access by Data

Subject Access by Public

Immediately if possible, or within 10 business days

As soon as reasonably possible, and at reasonable times & places

Inspection

Immediately if possible, or within 10 business days

As soon as reasonably possible

Copies

Ensure requester is the data subject

Can’t require identification, reason, or justification

Requesting Identity

► LETTERS of Reference for Employees

This section addresses some of the data practice concerns associated with providing employment references for state employees including those being laid off. It is important for you to be aware that the Minnesota Government Data Practices Act, which regulates the creation, collection and disclosure of government data, applies to all personnel data as well. In disclosing any information about current or former employees of your agency, you must comply with the Act.

If your agency determines that it will provide letters of reference for state employees for any reason, the following guidelines are recommended. • Determine ahead of time what approach you will follow for ALL employees. If the type of

information you intend to provide is proper, it should apply for all employees.

• Provide letters of reference only when requested to do so by the employee.

• Provide the letter directly to the employee so that s/he has control of disclosing the data. If you provide the letter to other than the employee you must require a valid informed consent. Address the letter to "prospective employers" and state in the letter that you have prepared this reference for the employee at their request.

• If the employee has been laid off, you may indicate that you regret the layoff, which was

due to lack of funding.

• Include any public information which is relevant to your point, such as dates of employment, job duties, promotions, etc.

• Information regarding an employee's performance is private; however, you may

describe performance in a reference letter if you only give the letter to the employee who can then provide it to others. Remember, you may not release this or other private information to anyone except the employee unless you have obtained a valid informed consent.

• Ensure that false information is never provided.



REMEMBER....

PUBLIC personnel data includes only the data listed in M.S. 13.43, subd. 2, 2a, and 3 and must be provided to anyone who asks for it. PERSONNEL data not listed in M.S. 13.43, Subd. 2, 2a, and 3 as public may not be disclosed without valid informed consent of the data subject.


Section IV Affirmative Action and

Equal Opportunity Data

Affirmative Action and Equal Opportunity Data This section addresses data practice concerns related to the implementation of agency affirmative action plans and equal opportunity program activities. It covers the collection, storage, and dissemination of data associated with protected group status and with some provisions of the state's affirmative action program including:

• protected group reports, goals, and hiring objectives; • reasonable accommodation; • audit and reporting systems; • pre-employment review; • weather emergency; and • building evacuation.

This section does not address data associated with affirmative action investigations and complaint procedures. See section on “Investigative and Disciplinary Data, Grievance Settlements & Arbitration Awards”. ► WHAT is Affirmative Action and Equal Opportunity Data

For purposes of this section, affirmative action and equal opportunity data refers to protected group status and related information. Protected groups are females; persons with disabilities; and members of the following minorities (racial/ethnic groups): Black (African American), Hispanic, Asian or Pacific Islander, American Indian, and Alaskan native. "Summary data" means statistical records and reports derived from data on individuals in which individuals are not identified and from which neither their identities nor any other uniquely identifying characteristics are ascertainable. Equal opportunity data includes those elements which may serve as the basis for an unfair discriminatory practice, such as race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, membership or activity in a local commission, disability, age, sexual orientation, and HIV infection status.

► WHY We Collect Affirmative Action and Equal Opportunity Data and HOW It May Be

Used

We collect equal opportunity data and information regarding individuals' protected group status in order to administer the state's equal opportunity and affirmative action programs. Agencies should collect affirmative action and equal opportunity data from employees only when there is a valid reason for doing so. Valid reasons for collection include the following.

Protected group status and related data on an individual may be used:

• to set affirmative action goals and monitor progress with respect to those goals;

• to determine compliance with affirmative action program provisions such as completion

of protected group reports;


• to report to the Equal Employment Opportunity Commission;

• to arrange for reasonable accommodations for an employee or applicant with a disability;

• to develop weather emergency and/or building evacuation procedures which address the needs of individuals with disabilities;

• to respond to charges filed with the Department of Human Rights or the Equal

Opportunity Employment Commission. We recommend that you contact the Attorney General's Office before you respond to such inquiries or charges.

Summary data on protected group status is collected for federal and state reporting purposes. Because as a general rule such summary data is public, it must be provided to anyone who requests it.

NOTE: If you are not certain about whether a particular purpose is appropriate, we recommend that you contact MMB or an attorney with the Attorney General's Office.

► WHO is Responsible For Collecting Affirmative Action and Equal Opportunity Data

Affirmative action data, equal opportunity data and data regarding an individual's protected group status are typically collected when an individual submits a job application to MMB or to a state agency. An agency may need to collect such data at other times in order to monitor or implement its affirmative action plans. For example, the agency may need information about an employee's disability in order to update its records for compliance purposes, to implement the reasonable accommodation provisions of its affirmative action program, or to provide for building evacuation. We recommend such collection be done through each agency's human resources office and/or affirmative action office.

► HOW Affirmative Action and Equal Opportunity Data is Classified

Private Affirmative Action and Equal Opportunity Data Affirmative action or equal opportunity data on an individual is private data because it is not made public by Minn. Stat. § 13.43, subds. 2 and 3. It is accessible only to the subject of the data, state employees who perform personnel or payroll functions whose work assignments reasonably require access, the Legislative Auditor, the Attorney General, Departments of Administration, Employment and Economic Development, and Labor and Industry, law enforcement agencies with statutory authority, the EEOC and the Minnesota Department of Human Rights, and any other person or entity authorized by state or federal law or court order to access the data. This means that you may not make public the protected group or equal opportunity status of any of your employees. That is, you may not disclose the following information about them without their informed consent. (See section on “Informed Consent”)

race (or ethnic group); color; creed; religion; national origin; gender; marital status;


status with regard to public assistance; membership or activity in a local commission; disability; age; sexual orientation; or HIV infection status.

To illustrate, each of the following statements about an individual is private. The information in italics is affirmative action or equal opportunity data on an individual.

• Jane Doe is a black female. • Joe Johnson is a white male. • Mary Jenson does not have a disability. • Bob Smith is 23 years old and single.

Public Affirmative Action and Equal Opportunity Data Affirmative action or equal opportunity data not on an individual and affirmative action or equal opportunity summary data are generally assumed to be public and must be disclosed to anyone who requests this information.

Affirmative action/equal opportunity data is summary data, and therefore public, if it does not identify an individual in any way. Generally, agency affirmative action reports, including goal sheets and cross tabulations, are public. In addition, the following statements are examples of public affirmative action/equal opportunity data because they do not identify specific individuals in any way.

• Agency ABC employs 750 women and 224 men. • Agency ABC employs 2 persons with disabilities. • Agency ABC employs 15 Hispanic managers.

Classifying Data In determining whether affirmative action and equal opportunity data are "summary data" and therefore public, or "data on individuals" and therefore private, you must consider the broad definition of "data on individuals."

Data is "data on individuals" if:

• the individual is named or otherwise identified in the data;

OR

• the data can in any way identify a particular individual even though that individual is

neither named nor otherwise explicitly identified in the data;

OR

• if the data can be used in connection with other public data elements to uniquely identify an individual. (Such data includes, but is not limited to, such things as job title where the particular data could only describe or identify one individual.)



Therefore, even if an individual is not named or otherwise expressly identified in what appears to be a summary report, the data may still be data on an individual and therefore private. For this reason, you should carefully review all reports and statements before making them public.

Though they appear to be "summary data," the following statements, taken together, actually reveal private data on an individual.

Agency ABC employs 1 manager. Agency ABC employs 1 manager who is disabled.

These statements taken together reveal private data because the data can be used in connection with other public data elements (the manager's name and job title) to identify the manager, and therefore the manager's disability status, which is private.

If you have any question as to whether a summary report reveals private data, you should consult with a representative of the Attorney General's office.

► WHO May Have Access to Affirmative Action and Equal Opportunity Data

Summary data on protected group status is classified as public data not on individuals. It is accessible to anyone.

Protected group status and other affirmative action data on an individual is private data and is accessible only to the subject of the data, state employees who perform personnel or payroll functions whose work assignments reasonably require access, the Legislative Auditor, the Attorney General, Departments of Administration, Employment and Economic Development, and Labor and Industry, law enforcement agencies with statutory authority, and any other person or entity authorized by state or federal law or court order to access the data.

Others, such as managers and supervisors, must have a reasonable need in order to have access to the data. For example, when dealing with reasonable accommodation, building evacuation, and weather emergency provisions, it may be necessary and reasonable for the supervisor to have access to some private information about an employee. However, you should not disclose private information without the approval of the agency's human resources office and affirmative action designee.

► HOW to Collect Affirmative Action and Equal Opportunity Data

Because affirmative action and equal opportunity data on an individual is classified as private data, you are required to provide the data subject with a Tennessen warning at the time you collect this information. This consists of:

• the purpose and intended use of the data within the collecting agency; • whether the person may refuse or is legally required to supply the data; • any known consequence from supplying or refusing to supply the requested information;

and • the identity of other persons or entities authorized by law to receive the data (see section

above on who may have access to the data).

(See “Collecting Private and Confidential Data” section in this manual.)

Section V Informed Consent


Informed Consent Under the Minnesota Government Data Practices Act, a government entity may disclose private data with the informed consent of the subject of the data. Therefore, when releasing private data or requesting private data an informed consent must be completed and signed by the subject of the data. This section explains the law's requirements for an informed consent and specifically sets forth the elements necessary in order for a waiver or release form to constitute a valid informed consent under the Act. In addition, this section addresses some of the questions most commonly posed by such forms. ► Definition of Informed Consent

Under M.S. 13.05, subd. 4 (d), an individual subject of private data may agree to disclose that private data by providing informed consent. Informed consent means that:

...the data subject possesses and exercises sufficient mental capacity to make a decision which reflects an appreciation of the consequences of allowing the entity to initiate a new purpose or use of the data in question. (Minn. Rules pt. 1205.1400, subp. 3)

► WHAT Constitutes Informed Consent

Whether a data subject has given informed consent shall be determined by rules of the Commissioner of the Department of Administration (see sample forms attached).

Minn. Rules pt.1205.1400 subp. 4 require that a valid informed consent must: • be voluntary and not coerced. • be in writing. • explain the necessity for and identify any known consequences for giving informed

consent. If the responsible authority makes reasonable efforts to obtain the informed consent of a data subject and if those efforts are not acknowledged in any way, the responsible authority shall interpret the silence of the data subject as the giving of an implied consent to the new or different purpose or use of the data. For purposes of this item, “reasonable efforts” shall include: • Depositing in the United States mail, postage prepaid and directed to the last known

address of the data subject, at least two communications requesting informed consent; and

• Waiting for a period of not less than 60 days for a response to the second request.


The data subject may give informed consent to less than all of the data elements in any list of data elements presented by a responsible authority, thereby giving only partial consent. Only those elements that the data subject has expressly consented to shall become part of the new or different purpose or use.

► HOW to Address Issues Raised by Consent Forms

• You should not release data unless a valid informed consent has been submitted.

• M.S. 181.967 provides for written authorization by current or former employees when a private employer is disclosing certain information about them. Using an informed consent form when requesting data from private employers would satisfy this requirement.

• Some consent forms sent by employers seeking references, lawyers seeking data for

purposes of litigation to which the state is not a party, and others, do not contain the necessary elements of an informed consent.

If you receive a form which does not contain the necessary elements of informed consent, we recommend that you return it to the sender with an explanation that it does not constitute a valid informed consent under the law and that accordingly, you cannot honor it. You may consider enclosing a proper form and state that if that form is returned, you will disclose the data (see sample form attached as Appendix A).

• You may receive requests directly from data subjects asking you to release private data

on them to other entities. Since private data cannot be released without an informed consent the data subject must complete such a form. (See Appendix B)

• Many consent forms will state that they expire immediately upon disclosure of the

requested data. If this is the case, follow this strictly. If the requestor seeks additional data at a later date, do not supply it unless there is a new consent form.

• The law specifically allows a data subject to give partial consent (Minn. Rules pt.

1205.1400, subp. 4). Thus, an employee may consent to the disclosure of some, but not all, data you have collected about that employee. You may disclose only that data which the employee has specifically authorized you to disclose. In addition, an employee may consent to the release of data to a specific third party. If this is the case, you may disclose the data only to that party and not to anyone else.

Sample Forms Appendix A at the end of this section is a general informed consent for the release of private data under the MGPA. It is used primarily when requesting private data from another entity such as a previous employer regarding an applicant or employee. The employer usually completes the form stating specific data, etc. they wish to have the other entity release. The data subject then signs and dates the form. Appendix B is an informed consent to be used when an individual (the data subject) is requesting that you release private data on the individual to another entity. The data subject will generally complete the entire form and submit to the agency in possession of the data.


Appendix A

Sample Form

INFORMED CONSENT TO THE RELEASE OF PRIVATE PERSONNEL DATA UNDER THE MINNESOTA GOVERNMENT

DATA PRACTICE ACT

Explanation of Your Rights • You have the right to choose what data we release. This means you can let us release all of

the data, some of the data, or none of the data listed on this form. Before you give us permission to release the data, we encourage you to review the data listed on this form.

• You have the right to let us release the data to all, some, or none of the persons or entities listed on this form. This means you can choose which entities or persons may receive the data and what data they may receive.

• You have the right to ask us to explain the consequences for giving your permission to release the data.

• You may withdraw your permission at any time. Withdrawing your permission will not affect the data that we have already released because we had your permission to release the data.

• If you have a question about anything on this form, or would like more explanation, please talk to [entity contact person name and contact information] before you sign it.

I, [name of individual subject], give my permission for the Minnesota Department of [name of

agency] (hereinafter department) to release that personnel data about me to [name of other

entity or person to receive data] as described on this form. I understand that my decision to

allow release of the data to [name of other entity or person to receive data] is voluntary.

1. The specific data that the department may release to [name of other entity or person to receive data] are: [explanation of data]. _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________

2. I understand that the department wants to release the data for this reason: [explanation of reason for release e.g. responding to an employment reference check] _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________


3. I understand that although the data are classified as private personnel data on me under Minn. Stat. 13.43 at the department, the classification/treatment of the data at [name of other entity or person to receive data] depends on laws or policies that apply to [name of other entity or person to receive data]. [also include other known consequences]. _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________

This authorization to release the data expires upon completion of the above stated purpose or after one year, whichever comes first. Individual data subject’s signature ______________________________ Date_____________


Appendix B

Sample Form

CONSENT TO RELEASE – REQUEST FROM AN INDIVIDUAL

An individual asks the government entity to release his/her private data to an outside entity or person. Because the entity does not have statutory authority to release the data, it must get the

individual’s written informed consent.

Explanation of Your Rights

If you have a question about anything on this form, or would like more explanation, please talk to the agency contact listed below before you sign it: Name of Agency Contact Address Phone Email I (name of individual data subject) give my permission for (name of government entity i.e.

agency) to release data about me to (name of the entity or person) as described on this form.

1. The specific data I want (name of government entity i.e. agency) to release is my

(explanation of data to be released).

2. I understand that I have asked (name of government entity i.e. agency) to release the

data.

3. I understand that although the data are classified as private at (name of government

entity i.e. agency), the classification/treatment of the data at (name of other entity or

person) depends on laws or policies that apply to (name of other entity or person).

This authorization to release expires (date/time of expiration).

Individual data subject’s signature ____________________________ Date: ____________

Parent/guardian [if needed] __________________________________ Date: ____________



Section VI Collecting Private and

Confidential Data

Collecting Private and Confidential Data ► Tennessen Warning Notice (M.S. 13.04, subd. 2)

When you collect private or confidential data on an individual, the Minnesota Government Data Practices Act requires you to provide the data subject with a Tennessen warning notice (named for Robert Tennessen, senate author of the original Data Privacy Act). The purpose of the notice is to enable an individual to make an informed decision about whether to give the data about her/himself to the government entity. A government entity may not collect data on individuals unless the collection is necessary to carry out its duties under a program that is authorized by law.

A Tennessen warning notice must explain the five considerations described below.

1. The purpose and intended use of the data, i.e., why the government entity is collecting

the data from the individual, and how it plans to use the data within the entity

2. Whether the individual is legally required to provide the data, or may refuse to do so

3. Any consequences known to the government entity if the individual provides the asked-for data

4. Any consequences known to the government entity if the individual does not provide the asked-for data

5. The identities of other persons or outside entities known to the government entity that are authorized by law to have access to the data. All Tennessen warning notices for state agencies should include, for example, that data may be shared upon court order or sent to the legislative auditor, but the notice must also list those persons specifically authorized to access the data under state or federal laws.

Connection between a Tennessen Warning notice and an Informed Consent

After giving a Tennessen and collecting data from an individual, a government entity may wish to use the data differently than it described, or may wish to release the data to a different entity or person other than what was described in the notice. In either of these situations, the government entity would need to obtain informed consent from the data subject. (see “Informed Consent” section)

► When are Tennessen Warning notices required

Individuals are asked to provide private and confidential data about themselves in conjunction with their employment with state government for a number of reasons, including, for example, when hired, during disciplinary investigations and for affirmative action plan administration.



Tennessen warning notices that are currently provided for state employees include: • during the Onboarding process for new hires (see MMB website for copies of the privacy

notice for new employees. http://www.mmb.state.mn.us/hr-data) • privacy notice for SEGIP http://www.mmb.state.mn.us/hr-data • on the Employee Self Service website to cover information provided by employees • for disciplinary investigations (see PERSL #1411)

We recommend that you develop a Tennessen specific to any situation in which your agency collects private or confidential data.

For example you would need to provide a Tennessen when: • conducting driver license checks on job applicants or current state employees (see State

Policy on Driver’s License and Record Checks) • conducting background checks including criminal history checks as part of the hiring

process (see “Conducting Background Checks” section).

Anyone in your agency who collects private or confidential data must be advised that they are required to give appropriate Tennessen warning notices.

The law does not require written Tennessen warning notices, but written documentation is recommended. It’s a good idea to ask the individual to sign and date the notice, and give him/her a copy. If the Tennessen warning notice is given in electronic format, an e-form should provide a way for the individual to indicate that s/he has read and understands the notice.

http://www.mmb.state.mn.us/hr-data

http://www.mmb.state.mn.us/hr-data