Michigan Un-Bans the Box

The new law protects any person or entity engaging in or intending to engage in a commercial activity, enterprise, or business in the state, except for local governmental bodies or educational institutions. This includes private employers.

As a result of the law, local governmental agencies are prohibited from adopting, enforcing, or administering an ordinance, local policy, or local resolution regulating information an employer or potential employer must request, require, or exclude on an application for employment from an employee or a potential employee. The law does not prohibit an ordinance, local policy, or local resolution requiring a criminal background check for an employee or potential employee in connection with the receipt of a license or permit from a local governmental body or in connection with a voluntary agreement between the employee and the local government.

The state has a law that prohibits private employers from inquiring about misdemeanor arrests, detentions, or dispositions where a conviction did not result in a conviction. (Michigan Complied Laws § 37.2205a). That law remains intact. Additionally, the federal Equal Employment Opportunity Commission considers any ban on hiring based strictly on criminal history to be discriminatory, and discourages employers from asking about criminal history on job applications. Applicable federal law will still prevail over this state law. Therefore, to the extent that federal anti-discrimination laws would prohibit consideration of criminal history, those federal laws remain in effect in Michigan.

Detroit has an ordinance that restricts public contractors working for the city from inquiring about convictions on job applications and prohibits background checks on employees and prospective employees before an interview or before an offer of employment is made (Detroit Municipal Code §§ 13-1-11,12,13). Detroit’s law probably remains in effect due to §15 of the state law which states that a local government can adopt, enforce, or administer an ordinance, local policy, or local resolution that involves a voluntary agreement between an employer and the local governmental body for services provided directly to the local government body. Therefore, a provision in a voluntary agreement with a governmental body may restrict public contractors from conducting background checks before an interview or before an offer of employment is made.

Mississippi is the only other state to pass an un-ban the box law (Senate Bill 2689 (2014)). It went into effect July 1, 2014. Michigan’s law was effective the date it passed on June 30, 2015.

If you have any questions about this new law or any other ban-the-box law, please contact your GIS client relations representative.

What This Means to You:

• Michigan’s Local Government Labor Regulatory Limitation Act allows employers in the state to ask about criminal history on job applications (except for misdemeanor arrests, detentions, or dispositions that did not result in a conviction).
• Michigan’s Local Government Labor Regulatory Limitation Act probably does not override Detroit’s restrictions on public contractors’ ability to inquire about convictions and obtain background checks prior to the interview or before an offer of employment is made.
• Determine if you have any employees in Michigan and in Detroit.
• If you do, review your employment application and the timing of your background checks with your lawyer to ensure compliance with Michigan’s state laws.

House Bill 4052 is available here for review: http://www.legislature.mi.gov/documents/2015-2016/publicact/pdf/2015-PA-0105.pdf

For more details on the FCRA, EEOC Guidance, various state laws and much more, please visit backgroundchecks.com’s compliance resources and compliance updates archives.