KEEP MICHIGAN WORKPLACES SAFE: We Support Complete, Accurate and Up to Date Background Checks

WHAT IS THE PROBLEM?
In 2019, as part of an e-filing initiative, the Supreme Court adopted modifications to rules 1.109 and 8.119 of the Michigan court rules. These rules require clerks to redact personally identifying information from documents that are filed in court and are available to the public. The list of protected identifiers includes date of birth, social security number, and driver’s license number.

The Michigan State Court Administrator’s Office (SCAO) interprets this rule as extending beyond the documents themselves and as prohibiting court clerks from:
1. providing search features in their publicly accessible systems that would allow the public to limit their search for court records by using a criminal defendant’s date of birth or other protected identifiers; or
2. confirming whether a specific date of birth or other protected identifier matches that in the court records for a criminal defendant’s date of birth or other protected identifier.

This interpretation will stop comprehensive background screening in Michigan.

HOW DOES THE INTERPRETATION OF THE COURT RULE STOP COMPREHENSIVE BACKGROUND SCREENING?
In preparing a background check, a background screener obtains key identifying information either from the applicant or from the employer who obtains it from the applicant. In this process, the applicant consents to a background check. Federal law prohibits a background screener from performing a check without the employer getting that consent.

The background screener uses date of birth in court records of criminal defendants to ensure that the record is actually about the applicant, because it is possible that the applicant has the same name as someone else. In cases when an applicant disputes a criminal record as not belonging to them, the screener checks with the clerk, using social security number or driver’s license number. This is all information that the applicant ultimately provided and authorized the background screener to use.

The effect of this interpretation is that court clerks have begun eliminating the ability to confirm that the date of birth of a criminal defendant in a court record is the same as the date of birth of the applicant. Without confirming a match on some identifier beyond name, background screeners will be unable to report criminal court records, because federal law requires more accuracy in their reporting than just a match on a name.

ARE THERE ALTERNATIVES AVAILABLE?
The SCAO has said that the rule allows anyone to stipulate to the release of their own protected identifiers. There are multiple problems with this approach. First, the existing systems by which employers obtain the consent of their applicants to perform a background check do not generally transmit that consent to the background screener. Second, even if the background screener has that consent, no one has told the clerks that such a consent satisfies SCAO’s requirement. Finally, even if it did satisfy that requirement, the clerks’ offices are not staffed to review hundreds or thousands of consent forms every day, since no additional funding accompanied the rule change.

The SCAO has also suggested that employers can run adequate screening through the Michigan State Police’s Internet Criminal History Access Tool (ICHAT). The problem with ICHAT is that – according to the Michigan State Police – courts and other agencies are only required to report crimes to ICHAT if the crime is punishable by more than 93 days of incarceration. While this includes all felonies, it does not include all misdemeanors, including ones that may relate particularly to a specific position.

For example, suppose you are a high school hiring a teacher. You ought to be very concerned if you saw that an applicant’s criminal record included multiple offenses for selling alcohol to minors. But under Michigan law, those crimes are punishable by no more than 60 days’ jail time for a first offense and 90 days’ jail time for second and subsequent offenses. So those offenses would not be reported in ICHAT.

The SCAO has also intimated that the reason that background screeners do not want to use ICHAT is not because of the inferior data in that system, but because screeners don’t want to pay the fee that ICHAT charges. This is false, in two ways. First, background screeners generally pass court fees through to their clients, so those fees are not ultimately the screeners’ responsibility. Second, screeners already pay county clerks for record access and those fees are often higher than the ICHAT fee.

WHAT IS THE EFFECT OF LIMITING BACKGROUND SCREENING
Background screening plays a number of important roles:
• First and foremost, background screening allows organizations to provide safer places to work, shop, learn, live, and play. Background screening protects Michiganders by separating people with a history of specific crimes from jobs where the opportunity to commit that type of crime is highest.

• Some federal laws require organizations to perform background checks. To satisfy these laws, employer may have to move jobs out of Michigan, which will reduce economic opportunity in Michigan.

• Some federal grants require universities and non-profit organizations to perform background checks. Michigan’s universities and non-profit organizations may miss out on grants because they cannot satisfy these requirements.

• Many employers that provide Medicare or Medicaid services perform background checks to avoid liability for financial waste, fraud, or abuse caused by their employees. Without background checks, they may be subjected to ruinous liability.

• Many state laws require background screening, including to maintain various state licenses. Organizations subject to those laws will simply have to violate them and live with the financial consequences. If it is required for a license, they may lose their license.

• To protect their reputations and customers, many large organizations require their vendors, their customers, or both to have their personnel pass background checks. Michiganders may be excluded from these economic opportunities.

WHAT IS THE SOLUTION?
The solution is to allow background screeners to efficiently confirm whether date of birth and other protected identifiers match those that the background screener provides to the clerk. This does not require publication of that protected information to the general public. All it requires is a Yes or No.

That can be accomplished by a feature that allows users of electronic access systems to limit their searches for records where the criminal defendant’s date of birth matches the one that the user provides. It can be accomplished by allowing the clerk to say Yes or No to the question of whether a given date of birth matches that on the record.

This change could be accomplished by the SCAO providing an official interpretation of existing rules, or by the Michigan Supreme Court revising the rules, or by the state legislature requiring the clerks to provide that very limited access.