Many employers conduct name-based background checks on prospective employees by using their dates of birth. However, the Michigan State Court Administrative Office recently issued two administrative orders that will make it harder for employers to conduct accurate Michigan background checks on prospective employees.
Redaction of Dates of Birth on State Court Records
Because of privacy concerns about the identifying information of people who have criminal records, the Michigan State Court Administrative Office issued two orders, ADM File No. 2017-28 and ADM File No. 2020-26.
Under these orders, court clerks will start to redact the dates of birth from court records. The orders were originally scheduled to become effective on July 1, 2021.
Redacting birthdates on court records will make it much more difficult for employers and consumer reporting agencies (CRAs) to obtain accurate background information about applicants. Employers and CRAs will no longer be able to distinguish between applicants and others by birthdate.
The sole identifier on a criminal court record will now be the individual’s name. This could result in problems when applicants without criminal records have similar names to others who have criminal records and vice versa.
How Will This Decision Affect Background Screening?
Background check companies like iprospectcheck cannot report criminal history information for applicants unless they have verified that the records belong to the applicants for whom they are conducting background checks.
Michigan courts have decided to remove identifying information from court records since more court records are being published online.
The identifiers that will be redacted from court records include birthdates, financial account information, driver’s license numbers, and others. The goal is to reduce the risk of identity theft. However, redacting birthdates will be problematic for both background screening companies and employers.
Employment background check providers rely on information from court records to compile accurate criminal history information on applicants. Redacting birthdates will make it difficult to differentiate between people with similar names who live in the same area.
While the State Court Administrative Office has stated that employers can choose to perform criminal history searches through the Michigan State Police Internet Criminal History Access Tool (ICHAT), the information provided by it is unreliable. ICHAT searches might fail to include some conviction records that courts have failed to report to the state.
Records from ICHAT might also include additional information that Michigan employers are prohibited from using when making hiring decisions.
For example, ICHAT records might include information about arrests that did not result in convictions that are seven or more years old and information about pending misdemeanor cases, both of which employers are prohibited from relying on under the Fair Credit Reporting Act and Michigan state law.
While the changes will make conducting accurate and comprehensive background checks in Michigan more difficult, iprospectcheck has adapted and is ready to implement new internal processes and search methods to ensure that clients receive the most reliable records available.
We are equipped to help our clients navigate these new changes.
When Will the New Rules Take Effect?
The Michigan Supreme Court issued an order on June 30, 2021 that delayed the implementation of the administrative orders for six months. This delay is meant to give more time to courts in Michigan to implement the changes. The state courts are not considering reversing the administrative orders.
Beginning on Jan. 1, 2022, birthdates will be redacted from court records in Michigan. This will likely have a major impact on employers that order criminal record checks on job candidates who have ever lived or worked in Michigan.
Court clerks will not be allowed to confirm a date of birth on a court record and cannot perform searches with dates of birth. Since a minimum of two identifiers is required for criminal background checks under both industry standards and federal law, this will greatly impair the ability of background check providers to perform accurate and comprehensive searches.
One suggestion the State Court Administrative Office has made is for background check companies to go to courthouses in person with the applicant’s signed consent authorizing the release of his or her date of birth and related court records.
However, that is impractical and would require court clerks to review and validate consent forms.
Turn to iprospectcheck to Help You Navigate these Changes
Employers need to be aware of these changes so that they can adequately prepare before Jan. 1, 2022. While the changes might make the background check process more difficult, it will still be possible to conduct comprehensive background checks that reveal all of the critical background information you need about your applicants, including criminal history information.
Working with a reliable background check provider like iprospectcheck that has already adapted to the changes can help to ensure that employers still receive accurate, comprehensive information about their applicants and make fully informed hiring decisions.
Contact us today to learn more about the preparations we have made and how we can continue to provide accurate, FCRA-compliant, and comprehensive Michigan background checks.
DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your counsel if you have legal questions related to your specific practices and compliance with applicable laws.