Job applications commonly have a question in the form of checking a box to indicate whether an applicant has a criminal record. If the applicant checks “yes,” the applicant is asked to explain the circumstances.
In reality, however, checking the box ends the employment opportunity for the applicant because it is likely that a prospective employer will deny the applicant employment even with a compelling explanation for the criminal record. For this reason, there has been a push to eliminate the question, which have been commonly referred to as “Ban the Box.”
Target ends its use of “Check the Box”
Target is ending on a national basis its use of its standard form question that asks if a job applicant has a criminal history. This move is in response to a Minnesota law passed enacted earlier in 2013 that requires private employers in Minnesota to remove the criminal history question off applications by the end of the year. However, Minnesota NPR reported that Target is voluntarily expanding that approach for all U.S. applicants.
Michigan and Criminal Background Checks
For Michigan employers, there are restrictions concerning what criminal background information about an applicant may be asked for in the employment application process. For example, under Michigan’s civil rights statute (the Elliott-Larsen Civil Rights Act also called the “ELCRA”) an employer cannot in connection with an application for employment or with the terms, conditions, or privileges of employment make a “request, make, or maintain a record of information regarding a misdemeanor arrest, detention, or disposition where a conviction did not result.” MCL 37.2205a(1).
In addition to Michigan or other state law, the Equal Employment Opportunity Commission (the federal agency responsible for carrying out most federal employment-related employment laws) issued guidance in April 2012 about the use of criminal background checks in employment applications. And failing to comply with the EEOC’s guidance has resulted in significant monetary settlements; Pepsi previously agreed to settle with the EEOC for over $3 million for running afoul of the EEOC’s policy. This guidance, however, has not been well-received by federal courts in addressing employment discrimination claims relating to criminal background inquiries.
Closing Thoughts on Criminal Background Checks
For these reasons and because of the dynamic and sometimes conflicting results reached by different courts, employers who are considering implementing a criminal background check policy should discuss the proposed policy with an experienced employment attorney to ensure compliance with federal and state law. And for more information on what may or may not be lawfully asked of job applicants, see our prior post Can An Employer Ask a Job Applicant … The Nuts & Bolts of Legal Pre-employment Inquiries.
Feel free to contact Jason Shinn, a Michigan employment attorney who regularly addresses complying with federal and Michigan employment legal issues and litigating these issues in state and federal courts.