Seyfarth Synopsis: Michigan Governor Rick Snyder recently signed a bill that will prohibit counties and cities from enacting "ban-the-box" ordinances or other restrictions on the ability of private employers to inquire about criminal history early in the hiring process."
On March 26, 2018, Michigan Governor Rick Snyder signed Senate Bill 0353, which amends existing state law that limits the powers of local governmental bodies regarding the regulation of terms and conditions of employment for private sector employers (the "Local Government Labor Regulatory Limitation Act"), by providing that:
A local governmental body shall not adopt, enforce, or administer an ordinance, local policy, or local resolution regulating information an employer or potential employer must request, require, or exclude on an application for employment or during the interview process from an employee or a potential employee.
In other words, Michigan cities and counties are prohibited from passing ban-the-box-ordinances for private sector employers or other laws that regulate hiring decisions made in the private sector. As a practical matter, this means that local government bodies in Michigan cannot require employers to wait until later in the hiring process, such as after an interview or a conditional offer, to ask job applicants, "Have you ever been convicted of a crime?".
The law goes on to state that it 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."
The amendment is effective 90 days after it is enacted into law.
In the last few years, nationwide employers have struggled to keep up with the onslaught of state and local ban-the-box laws. Fortunately, for the time being, Michigan employers, and nationwide employers with a presence in Michigan, do not have to worry about this jurisdiction being added to the growing list of such laws, including, most recently, California and Washington. That said, existing Michigan law restricts employer use of criminal history in some respect by making it unlawful for an employer to request information regarding a misdemeanor arrest, detention or conviction that did not result in a conviction.
Employers that hire in Michigan should consider reviewing their background screening policies to ensure that misdemeanor non-convictions are not being requested or considered. All employers should continue to be mindful of other laws regulating criminal records checks and screening policies, including the Fair Credit Reporting Act (a consistent source of class action litigation) and state and local employment and ban-the-box laws.
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