Michigan's New Clean Slate Law Creates Employee Background Check Delays

Many states today now go further than federal law in the regulation of employee background check procedures. "Ban the box" and "fair chance" laws typically require delays in when and how employers ask job applicants about any criminal records in their past. Ideally, such procedures encourage individuals to apply for jobs they might not otherwise seek because of their record. However, some fair chance laws do even more.

In Michigan, for example, a new "clean slate" law went into effect in April of 2023. However, there were some immediate and perhaps unforeseen consequences, including the creation of lengthy delays in some background checks. Now, employers may even worry about whether they're more likely to encounter discrepancies in background checks for employment. What's happening?

What does the new law require?

Under the terms of the law, Michigan will now automatically expunge certain misdemeanor and criminal records after a set period of time. An individual can have up to two ten-year-old felonies wiped away, for example. For misdemeanors, up to four criminal charges will automatically vanish from an individual's record seven years after the conclusion of sentencing. Individuals don't need to petition the court or take any action. Instead, state courts must automatically delete these records.

There are exceptions, of course, for serious and violent crimes. For many types of misdemeanors and felonies, though, the law aims to offer a fresh start for those who have lived a crime-free life following their original convictions. By streamlining access to expungement, employment opportunities should expand while helping individuals avoid cumbersome and sometimes expensive legal processes.

There's just one problem: since the law went into effect, some employers and gig economy workers have seen wait times for background check results skyrocket.

Why are background checks in Michigan slowing down?

The issue stems from the sheer volume of work that must take place to identify the correct records and remove them from public view. To avoid violating the law and the federal FCRA, some county courts in the state opted to temporarily remove public access to the records. Many courts continue to work through the expungement process and do not want to report incorrect information. For companies that rely on digital systems to generate background checks for employees, the only option is to search at courthouses in person or wait for the digital system overhaul to complete.

Will employers encounter discrepancies? 

Ideally, employers should not encounter criminal records on a report that should no longer appear because of expungement. In cases where a charge that should've undergone expungement still appears, job applicants may initiate an FCRA dispute with the screening partner you provide. This should lead to verifying the information and, when necessary, removing the charges from subsequent reports.

The most likely discrepancy employers could encounter will appear during re-screening processes. A charge that appeared on an employee's report several years ago might vanish from a future report. Employers should adjust their policies and expectations to understand that this is not an issue of inaccuracy but merely a change in the records.

Preparing to continue hiring with confidence in Michigan

Keeping the above information in mind should help Michigan employers navigate the changing criminal justice system in the state. When the highest level of confidence is a necessity, consider ordering direct county courthouse record searches. Since computer databases may take time to update, a direct search is the simplest way to understand that you've gathered the most recent information available. In time, turnarounds on the employee background check process in Michigan should return to normal. In the meantime, companies should prepare for potential delays while reviewing their procedures for compliance and accuracy.