The Detroit Lions recently found themselves in the midst of a firestorm when it was discovered that their new football coach, Matt Patricia, had been arrested in 1996 for a felony sexual assault. All charges were dropped before trial, and the case was dismissed. Nonetheless, questions were raised about Patricia’s fitness for the job, and the thoroughness of the Lions’ background check.
In Michigan, various laws apply to restrict what may be asked of job applicants concerning their criminal past. The Elliott-Larsen Civil Rights Act does not permit an employer to “make, or maintain a record of information regarding a misdemeanor arrest, detention, or disposition where a conviction did not result. A person is not guilty of perjury or otherwise for giving a false statement by failing to recite or acknowledge information the person has a civil right to withhold by this section.” This law is less clear regarding felonies, stating that “This section does not apply to information relative to a felony charge before conviction or dismissal.”
The Michigan Department of Civil Rights “pre-employment inquiry guide” interprets this to permit an employer to ask about any felony arrest that did not result in a conviction.
NachtLaw attorney Nicholas Roumel acknowledges that, but advised that it’s still not wise for employers to ask about arrests that don’t result in convictions. He was quoted in an ESPN report about the Matt Patricia controversy to that effect.
In addition to Michigan law, the federal Fair Credit Reporting Act, which regulates background checks, prohibits inquiry into arrest records more than seven years old [15 U.S.C.§ 1681c(a)(2)]. The Equal Employment Opportunity Commission has also issued guidance, noting that arrests don’t establish criminal conduct, and cautioning that background checks should be narrowly tailored and consistent with business necessity – or they may result in discriminatory practices.
There are exceptions, such as applications for certain government positions or law enforcement. Also, certain licensing agencies may ask about past arrests (such as the State Bar, which licenses attorneys). In general, however, it is not a good public policy for an employer to ask about arrests that did not result in convictions. Unproven accusations, especially those as old and inflammatory as those faced by Coach Patricia, may prove an insurmountable obstacle for an otherwise qualified job applicant.
If you are ever faced with a question on a job application that you are unsure about and don’t know how to answer, contact the attorneys at NachtLaw to give you sound and professional guidance.