State House to Consider to Bill to Prohibit Criminal History Questions on Job Applications

November 11, 2013

The House Commerce Committee this will begin taking testimony on Tuesday, Nov. 12, on legislation to "Ban the Box."  House Bill 4366 would prohibit employers from using an initial job application that asks prospective employees about their criminal history, including felony convictions.  
 
The legislation prohibition does not apply to a background check, any inquiry that takes place after the submission of the initial application for employment or an inquiry that is necessary to enable an employer to comply with a requirement of state or federal law. Nevertheless, the Michigan Chamber is strongly opposed to this legislation and will be voicing our concerns at the Committee hearing. 
 
Specifically, federal law and case law already provides ample protections against employment discrimination against individuals with conviction records. Specifically, Title VII of the Civil Rights Act protects people with criminal records from employment discrimination. The Equal Employment Opportunity Commission (EEOC) has interpreted Title VII of the Civil Rights Act to prohibit employment policies that exclude individuals on the basis of their conviction records. In the absence of a justifying business necessity, such policies violate Title VII and are illegal. In order to establish business necessity, the employer must show that it considered three factors in making an employment decision: (1) The nature and gravity of the offense(s); (2) the time that has passed since the conviction and/or completion of the sentence; and (3) the nature of the job held or sought.
 
Furthermore, a recent court decision, El v Southeastern Pennsylvania Transportation Authority, adopted a similar, but slightly different, standard than the EEOC, holding that under Title VII, criminal record policies must “accurately distinguish between applicants that pose an unacceptable level of risk and those that do not.”

Like in Michigan, most states allow employers to ask job applicants about both their arrest and conviction records and may legally consider an applicant’s conviction(s) in making hiring decisions, subject to the limitations above. If an applicant fails to disclose information or misrepresents the information, and the employer discovers the deception, the individual can be legally fired. 

Rather than imposing a blanket ban and interfering with core workplace policies and decisions, the Michigan Chamber believes the Legislature should incentivize the hiring of individuals with criminal records by eliminating liability to employers hiring these employees. Similar legislation has passed in Texas and Ohio and is expected to be introduced in Michigan in the coming weeks. 
 
Please contact Wendy Block with any questions or if you have a desire to engage in the legislative process at 517/371-7678 or wblock@michamber.com.