Ban the Box Laws in Michigan: Criminal History in Hiring

The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, regulates how employers use consumer reports including criminal background checks. The EEOC enforces guidance under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, stating that blanket exclusions of individuals with criminal records may have a disparate impact based on race. Federal law does not prohibit asking about criminal history; rather, it requires individualized assessment if criminal history is considered. The FCRA requires employers to provide notice before obtaining a background check, allow applicants to dispute inaccuracies, and provide written notice if a criminal record results in denial.

The EEOC's Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions (2012) instructs employers that they must evaluate the nature and gravity of the offense, the time elapsed since conviction, and the job's requirements. Federal law covers all employers with 15 or more employees under Title VII, and the FCRA applies to all employers using third-party consumer reporting agencies. Remedies include back pay, front pay, compensatory damages for emotional distress, and attorney fees under both statutes.

Michigan's Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws § 37.2701 et seq., provides protection beyond federal law by explicitly prohibiting employers from inquiring about felony convictions on application materials, in interviews, or during the initial hiring stage. Michigan's ban-the-box law is stronger than federal requirements because it creates an outright prohibition rather than a disparate impact standard; employers cannot ask about any felony conviction history before making a conditional job offer. Once a conditional offer is made, employers may conduct a background check and inquire about criminal history, provided they comply with FCRA procedural requirements.

Michigan applies these protections to all employers with one or more employees—a lower threshold than Title VII's 15-employee requirement. The state law distinguishes between felony and misdemeanor convictions; felonies receive explicit protection, while misdemeanors are handled on a case-by-case basis. Michigan also requires employers to conduct an individualized assessment if criminal history is discovered, considering the nature of the offense, time elapsed, job duties, and rehabilitation efforts. Notably, Michigan's law does not provide explicit protection for arrests without conviction, though FCRA guidance suggests careful handling.

Michigan remedies include actual damages, punitive damages up to three times actual damages, reinstatement, back pay with prejudgment interest, front pay, and attorney fees. The Michigan Department of Civil Rights (MDCR) enforces ELCRA claims. Michigan's law is broader in scope than federal law because it applies to smaller employers and creates a bright-line rule prohibiting questions before conditional offer, whereas federal law focuses on disparate impact analysis after the fact.

Michigan's ban-the-box law contains important exceptions. First, certain positions are excluded: law enforcement, security positions requiring bonding, and occupations where a state or federal law mandates background checks. Second, positions in childcare, healthcare, and education involving vulnerable populations may have broader permissible inquiries about criminal history due to separate licensing and regulatory requirements.

Third, the exclusion applies to convictions; arrests without conviction cannot justify hiring decisions under ELCRA. Fourth, if an applicant voluntarily discloses criminal history, employers may use that information, though they must still conduct individualized assessment. Fifth, positions requiring federal clearance or certain professional licenses (law, medicine) may have carve-outs under licensing board rules rather than employment law.

Sixth, employers are not required to hire someone with a conviction history; the law only prohibits asking the question upfront. Seventh, sealed or expunged records generally cannot be considered; Michigan recognizes these as legally erased. Eighth, at-will employment doctrine still applies—an employer may terminate an employee if a criminal conviction is later discovered and genuinely relates to job performance, provided the employer follows individualized assessment procedures. Finally, if the applicant's criminal history genuinely affects essential job functions (e.g., driving with a DUI conviction for a delivery driver), this may be a valid business-related exception, though courts apply this narrowly.

Step 1: Document Everything. Keep copies of the job application you received without a criminal history question, screenshots of the online application form, email communications referencing the interview, and any notes about what was asked verbally during phone or in-person interviews. Save copies of job postings if they included prohibited questions. Document the date, time, and person who asked the question. If you disclosed criminal history voluntarily, note exactly what you said and the context. Retain rejection letters or emails. If you were hired then terminated after background check, save the background check notice you received.

Step 2: Understand Your Internal Options. Michigan employers should have an internal complaint process, though not legally required. If asked illegally, you may request to speak with HR or a manager and explain that Michigan law prohibits the question before conditional offer. Provide written notice via email referencing Mich. Comp. Laws § 37.2701. This creates a paper trail and may prompt corrective action. However, do not expect a favorable response; internal complaint is not required but creates documentation of the violation.

Step 3: File with the Correct Agency. You have two parallel options: (1) Michigan Department of Civil Rights (MDCR) or (2) federal EEOC. For fastest Michigan-specific resolution, file with MDCR at mdcr.michigan.gov or call 517-335-3165. Submit a charge of discrimination using MDCR's online portal or by mail to Michigan Department of Civil Rights, 110 W. Michigan Ave., Lansing, MI 48913. Include: your name, contact information, employer name and address, date of the violation, detailed description of what question was asked and by whom, any witnesses, and your desired remedy. Filing deadline is 180 days from the discriminatory act. Alternatively, file federally with the EEOC at eeoc.gov or call 1-800-669-4000 and select Detroit field office; deadline is also 180 days.

Step 4: The Investigation Process. MDCR will notify the employer of your charge within five days. MDCR investigators will contact the employer to gather their response, typically within 30-60 days. You may be asked to provide additional evidence or statements. Investigation usually takes 60-120 days. MDCR will issue a determination: probable cause (violation found) or no probable cause. If probable cause, the case may proceed to conciliation (settlement negotiation) or be referred to the Michigan Civil Rights Commission for administrative hearing. Federal EEOC investigation follows similar timeline but may take longer (120-180+ days). During investigation, employers cannot retaliate against you.

Step 5: When to Consult an Attorney. Consult an employment attorney immediately if: (1) you were terminated or faced adverse action after filing a charge, (2) the violation prevented you from getting a job and you have damages (lost wages), (3) the employer's response suggests they will challenge your claim vigorously, or (4) you want to pursue punitive damages. Michigan allows employees to recover actual damages, punitive damages up to three times actual damages, and attorney fees. An attorney can represent you at administrative hearing or civil litigation. Many Michigan employment lawyers work on contingency (no upfront cost). Contact the State Bar of Michigan Lawyer Referral Service at 517-346-6300 or visit michbar.org for employment law specialists.