Background Check Compliance Update: Michigan Begins Automatic Expungement
As cities and states continue to develop and pass “clean slate” and “fair chance” legislation, background check compliance has grown more challenging for employers. Making an employment decision based on a record you weren’t supposed to see could have consequences—even if you made a mistake in good faith. Understanding the latest changes in fair chance and ban the box rules is essential to keeping your business staffed and compliant.
“Clean slate” laws seek to provide former criminal offenders with a clean slate start again. Most often, that means sealing or expunging criminal records. This process removes records from view; in the case of expungement, the record is usually destroyed in its entirety. State laws forbid employers from asking applicants whether they’ve used such processes. Related background check legislation makes it illegal to consider these records even if they appear on a background check.
The latest version of this process in Michigan rolled out in 2023, two years after the new background check regulation was initially passed. Soon, many people will have their records automatically expunged for many different misdemeanors and felonies.
How does the new Michigan law work?
Aiming to remove one of the most common roadblocks to employment, Michigan will automatically expunge most minor misdemeanors, some serious misdemeanors, and some felonies. As long as the individual’s record meets the criteria, their record will vanish automatically—no court petition or application required.
For misdemeanors, seven years must pass from the date of conviction. All minor misdemeanors vanish after this point, with no limit on how many might be expunged. Higher-level misdemeanors are limited to four expungements and only occur if the individual has not been convicted or charged with another crime. Similar conditions apply to felonies along with a 10-year waiting period.
Michigan does exclude certain offenses from this program, such as violent crimes, sex abuse, forgeries, and some others. However, the law is a game-changer for thousands of Michiganders and an inflection point for employers.
What do employers need to know?
If all goes well, employers will not need to make too many changes to their efforts to observe background check compliance and regulation properly. The most common issues employers encounter after expungement legislation goes into effect stem from out-of-date state databases. Such problems are why backgroundchecks.com contributed to creating an expungement clearinghouse to ensure reporting agencies correctly remove old records.
However, Michigan’s state police will transmit daily updates about expunged records to the relevant court systems. If reporting agencies update their information regularly, the chance of encountering an expunged record will be low. Nonetheless, it’s prudent to observe all the relevant FCRA guidelines. Using the EEOC factors for evaluating records, especially regarding a crime’s relation to the job in question, is also essential.
Michigan may be the latest state to enact the automatic expungement processes, but it won’t be the last. As the landscape of legislation continues to change, employers everywhere—not only in Michigan—must invest time in continued background check compliance. With such an uncertain landscape, it could be easy to make mistakes. Vigilance and up-to-date information make the difference.
About Michael Klazema The author
Michael Klazema is the lead author and editor for Dallas-based backgroundchecks.com with a focus on human resource and employment screening developments