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Background Screening Updates for the New Year

January 15, 2022

By Susan Chance, courtesy of SBAM Approved Partner ASE

Last year seemed to fly by, but there was plenty of time for lawmakers to make updates to existing laws regarding background checks.

The best news is that the Michigan Supreme Court adopted a proposed rule regarding the redaction of birthdates form court files. In an effort to keep birthdates available for employment background checks, the Professional Background Screening Association (PBSA) has been working to influence the Michigan Supreme Court’s decision in this matter. According to the PBSA, the “key elements of the rule are:

1.  Definition of what constitutes “consent” for purposes of background screening.

2.  Outlining a registration process for Michigan members as well as requirements for proof of liability insurance. This proposed registration would need to be verified every 6 months.

3.  Moving the effective date of these new procedures from January 1, 2022, to April 1, 2022.

4.  There is a public comment period in the new rule which will close on April 1, 2022.”

Some locations in California started restricting access to birthdates from public access resources. In August of 2021, Los Angeles County started to partially redact birthdates making only the month and year available. This change makes ordering court files necessary for the full birthdate to be viewed. The courts have put a process in place for file requests, and unfortunately, part of that process is to limit the number of daily file requests. This means that turn around times for checks with potential records will take longer.

Our neighbors in Illinois made changes to their Human Rights Act, which in turn will make it harder for employers to take adverse actions against applicants and employees based on convictions. Employers can only use convictions in employment decisions if the conviction has a “substantial relationship” to the position or if it presents “unreasonable risk” to property or safety of others.

According to Pamela Q. Devata and Jennifer L. Mora from Seyfarth Shaw, the following process must be followed:

“Illinois employers must consider: (1) the length of time since the conviction; (2) the number of convictions on the individual’s record; (3) the nature and severity of the conviction and its relationship to the safety and security of others; (4) the facts or circumstances surrounding the conviction; (5) the age of the individual at the time of the conviction; and (6) evidence of rehabilitation efforts.”

If the employer decides to move forward with an adverse action, “the employer must provide a written notice that contains: (1) the disqualifying conviction(s) and the employer’s reasoning for the disqualification; (2) a copy of the conviction history report, if any; and (3) an explanation of the applicant or employee’s right to respond before the employer’s decision becomes final, including the right to submit evidence challenging the accuracy of the conviction record(s) or evidence of mitigation, such as rehabilitation. The employer must wait five business days before making a final decision to allow the individual an opportunity to respond to the notice and submit information for the employer’s consideration.”

“If the employer decides to move forward with the adverse action, it must provide the individual a final written notice, which must (again) identify the conviction at issue, explain the basis for the decision (even if not changed from the preliminary notice), advise of any existing internal procedures for requesting reconsideration, and advise the individual of the right to file a charge of discrimination with the Illinois Department of Human Rights.”

Stay tuned for additional noteworthy updates.

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