Beginning April 11, 2023, some felonies and misdemeanors will be automatically expunged after a certain amount of time under Michigan’s Clean Slate Act. The Law also makes more people in Michigan eligible for expungement through an application process.
Andrea Sahouri for the Detroit Free Press explained what convictions are eligible for expungement and details for how the process will work. More information about automatic expungement can also be found here.
For employers, Michigan’s Clean Slate Act does not alter what inquiries may lawfully be made concerning past criminal history. Still, it is essential to understand what is and is not permissible when conducting a criminal background check.
You should consult with an experienced Michigan employment attorney for a full explanation. But in sum, it is lawful for employers to ask:
- Whether the applicant has ever been convicted of a crime (misdemeanor or felony). But remember, it is unlawful for most all employers (law enforcement agencies are excluded) to inquire about misdemeanor arrests that did not result in a conviction;
- If so, employers may ask about the details like when, where, and the nature of the offense;
- Whether the applicant has ever been arrested for or charged with a felony; and
- Whether there are any felony charges currently pending against the applicant.
Additionally, companies should follow other best practices if they conduct criminal background checks. Among these best practices, an employer must be consistent in making criminal background checks on its employees and applicants. This is because Inconsistent investigation may result in an inference of discrimination against a particular racial or ethnic group.
Should Employers Conduct Criminal Background Checks?
As an attorney advising companies on HR and employment law issues for the past 20 years, I think employers should question the value of conducting criminal background checks – at least across the board for all employees. Here are a couple of reasons:
First, a criminal background offers no protection against future misconduct or criminal actions. You see this any time an employee is arrested for theft or – worse – engages in violence. For example, a bank employee who recently went on a workplace mass killing spree at a Kentucky bank likely went through and passed a criminal background check because of his bank position (according to the Wall Street Journal, a LinkedIn profile showed his job as a syndications associate and portfolio banker).
From my own legal experience, I had a business client whose CFO abruptly resigned after about four years. The resignation happened after suspicious financial transactions were discovered. The CFO denied through his legal counsel doing anything illegal (See proceedings from Oakland County, People of the State of Michigan v Brian Michael White CR #2021-276874-FH). But this same former CFO made this denial after admitting to a Madison Heights Detective that he used the employer’s credit card to pay for his personal medical bills, his daughter’s tuition, and other personal expenses.
These are examples of how criminal background checks are only a snapshot of a person. And that person or the person’s circumstances may change after the background check is completed. Also, criminal background checks may create a false sense of security by replacing an employer’s due diligence in continually monitoring for employee misconduct.
Second, if someone commits a crime but fully completes the sentencing requirements, is it fair or beneficial to continue to keep that person out of the workforce?
We saw this issue recently on display in the Michigan Supreme Court when Justice Bernstein publically criticized his fellow Supreme Court Justice for hiring a clerk who had been convicted 29 years earlier of robbery and shooting at a police officer.
That clerk, however, had fulfilled his criminal sentencing, met all conditions to be paroled in 2008, became an advocate for improved prison conditions, and worked for the State Appellate Defender Office. Yet Justice Bernstein lobbied through the media his belief that this clerk’s 29-year-old conviction disqualified him from working.
I can’t say I agree with Justice Bernstein. But as a father, husband, and attorney, there are criminal convictions I don’t think I would ever overlook in making a hiring decision. Drawing that line may not be an easy call, nor should it be.
But too often, no meaningful assessment is made because if there is any conviction, the applicant is rejected. Michigan’s Clean Slate Act will begin to change that for many otherwise qualified job applicants.
Since 2001, Mr. Shinn has represented companies and individuals concerning the abovementioned issues and other employment matters under federal and Michigan employment laws.