Amendments to Expungement Laws Allow Applicants to Legally Deny Convictions

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By: JAMES M. REID

 

Recently, the Setting Aside Convictions Act was amended to allow up to 1 felony or 2 misdemeanor convictions to be expunged.  Specifically, a person convicted of up to 1 felony and 2 misdemeanors may petition the court to set aside [expunge] the felony conviction and a person convicted of up to 2 misdemeanors may petition the court to expunge both misdemeanor convictions.  After a record is expunged, an applicant shall be legally considered not to have been previously convicted.  See MCL 780.622(1).  Therefore, applicants can deny such convictions on a job application and such convictions will not appear on a criminal background report.

A petition cannot be filed until at least 5 years after the date of the conviction.  Notwithstanding the foregoing, certain crimes may not be expunged including: traffic offenses (DUIs), felonies for which the maximum punishment is life imprisonment, certain criminal sexual conduct, human trafficking offenses (unless such offense was the result of being a victim of human trafficking), certain domestic violence offenses, and terrorism offenses.  Successful expungements do not eliminate the requirements for sex offender registration.

Expungements give applicants the opportunity for a fresh start.  This amendment appears to be consistent with: (1) the “ban the box” laws (which prevents conviction inquiries on a job applications and delays such inquiries until later on in the hiring process) that passed in 16 states [not including Michigan] and over 100 cities; and (2) Michigan law that prevents misdemeanor arrest records from being taken into account.  The intent is to ensure people with convictions have a fair chance to work since nearly 1 in 3 adults in America have an arrest or conviction record.

Employers should seek legal advice of counsel before making hiring/firing decisions based upon a criminal record.  By way of example, employers could be liable for failing to comply with the Fair Credit Reporting Act (by either wrongfully conducting a background search or failing to disclose the results of the background search with the applicant).  Likewise, employers could be subject to race discrimination claims for refusing to hire employees with misdemeanor convictions unrelated to job duties since it could screen out more African American applicants.  Lastly, given the momentum of this fresh start initiative on a national level, employers should continue to be on the lookout for additional legal updates.

This article was written by JAMES M. REID, a member of the Legal Affairs Committee of Detroit SHRM, a Resource Partner Director of MISHRM, and a shareholder of the law firm of Maddin Hauser Roth & Heller PC located in Southfield, Michigan. He can be reached at (248) 351-7060 or jreid@maddinhauser.com.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. May 2015.