['Recruiting and hiring']
['Negligent Hiring / Retention']
06/11/2024
Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
...
SEARCH
Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Michigan, an employer may disclose to a prospective employer or an employee upon request information about employee job performance documented in a personnel file, unless he/she is not acting in good faith. An employer may be liable for disclosures not made in good faith. Lack of good faith may be shown if the employer discloses information:
- It knew to be false or misleading,
- With recklessness, or
- That was prohibited by statute.
An employer may not share with a prospective employer a disciplinary report, letter of reprimand, or other disciplinary action about an employee/former employee without the employee/former employee’s written request, unless a government agency is the requester for an employee/former employee claim/complaint. An employer must review personnel records before sharing them with others, unless the records are requested for legal action or arbitration activities. An employer must delete disciplinary reports, letters of reprimand, and disciplinary actions, if they are over four years old.
Arrest record inquiries
In Michigan, an employer may not ask about information regarding a misdemeanor arrest, detention, or disposition where a conviction did not result. This does not apply to information relative to a felony charge before conviction or dismissal. According to the “Pre-employment Inquiry Guide” published by the Michigan Department of Civil Rights, employers may not ask about misdemeanor arrests that did not result in a conviction. Employers may ask about pending felony charges.
This differs from the EEOC’s Notice N-915-061, which says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
Both the EEOC and Michigan have no laws or regulations specifically prohibiting conviction record inquiries. According to the “Pre-employment Inquiry Guide” published by the Michigan Department of Civil Rights, employers may ask about convictions.
However, this differs from the EEOC’s Notice N-915, which says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964 in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
Michigan Department of Labor and Economic Growth
Arrest record inquiries
Michigan Department of Civil Rights
Conviction record inquiries
Michigan Department of Civil Rights
Regulations
Employer immunity from disclosure claims
Michigan Statute 423.451, Definitions
Michigan Statute 423.452, Disclosure of information relating to employee’s job performance; immunity; exception
Michigan Statute 423.506, Divulging disciplinary report, letter of reprimand, or other disciplinary action; notice; exceptions
Michigan Statute 423.507 Review of personnel record before releasing information; deletion of disciplinary reports, letters of reprimand, or other records; exception
Arrest record inquiries
Michigan Statute 37.2205a, Employer, employment agency, or labor organization; record of information regarding misdemeanor arrest, detention, or disposition; failure to recite or acknowledge information; “law enforcement agency” defined
Conviction record inquiries
Michigan Statute 37.2205a, Employer, employment agency, or labor organization; record of information regarding misdemeanor arrest, detention, or disposition; failure to recite or acknowledge information; “law enforcement agency” defined
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
READ MORESHOW LESS
['Recruiting and hiring']
['Negligent Hiring / Retention']
Load More
J. J. Keller is the trusted source for DOT / Transportation, OSHA / Workplace Safety, Human Resources, Construction Safety and Hazmat / Hazardous Materials regulation compliance products and services. J. J. Keller helps you increase safety awareness, reduce risk, follow best practices, improve safety training, and stay current with changing regulations.
Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.