The 10th Amendment reads:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Each state has its own legislature and, therefore, its own laws and its own due processes. When a state law is breached, proceedings are carried out in a state courthouse– where all pertinent information and documentation is maintained.
Because of the 10th Amendment, the states have little obligation to the federal government when it comes to sharing their court records or following certain processes imposed upon them. In short, states reserve the right to determine how their state court information is stored and utilized.
The state of Michigan recently exercised this right and is creating a bit of buzz– particularly in the world of background screening.
Michigan Clean Slate Law Now In Effect
Signed into law on October 13, 2020, the “Clean Slate” package began its official rollout/implementation on April 11, 2023.
What Is It?
The Clean Slate Law calls for the automatic removal/expungement of qualifying criminal records in Michigan.
According to the State of Michigan, the following criteria will be used to determine which records are set aside:
- Misdemeanors punishable by less than 92 days imprisonment (after 7 years) – no limit
- Misdemeanors punishable by 93 days or more imprisonment (after 7 years) – no more than 4
- Felonies (after 10 years) – no more than 2
Misdemeanors punishable by 93 or more days imprisonment or felonies will be automatically set aside if:
- The specified waiting period has passed (either 7 or 10 years).
- There are no pending charges against the individual in the MSP CHR database.
- No additional criminal convictions have been recorded in the MSP CHR database during the specified waiting period.
Automatic removal will not apply to the following:
- Assault crimes
- Serious misdemeanors
- Crimes of dishonesty
- Offenses punishable by 10 or more years imprisonment
- Human trafficking violations
- Certain traffic/other offenses (for more information, visit this page)
How Does It Work?
The Clean Slate process is meant to be completely automated. The records system will observe and execute the criteria it’s provided.
Technical changes to Michigan’s CHR database and the implementation of a reworked technological/procedural infrastructure will aid in this objective.
Who Is Impacted?
This law primarily concerns any individual who has committed a crime in Michigan but is also relevant to anyone who has lived, worked, or attended school in the state.
Additionally, employers hiring within the state of Michigan, or employers hiring individuals with ties to Michigan could be impacted for months to come.
Logistical Issues to Be Aware Of
Due to the nature of the task, considerable court delays have already been cited.
As was (somewhat) expected, the Michigan State courts have encountered a few bumps in the road as they attempt to implement this complicated process, retroactively adjusting all currently-archived data.
There are both clerical and technical issues that require troubleshooting, and time is needed to calm the heavy winds.
What Does This Mean for Employers?
There’s no way around it.
The Michigan courts are currently strained, and retrieving court data from the state will take much longer than usual. The process will smooth itself out over time, but CRAs requesting information from Michigan courts are entirely at their mercy for now.
If you are experiencing hiring hold-ups due to criminal screening delays in Michigan, you’re not alone. Many employers are experiencing the same thing.
The delays are caused by the implementation of the Clean Slate Law, and it will likely be a good while before things start moving along smoothly. Unfortunately, screening providers have little influence over the situation and are at the mercy of the courts. However, we are optimistic that a resolution is fast approaching.
We hope you found this information helpful. For more resources like this, visit our blog.