The Michigan Supreme Court and State Court Administrative Office have undertaken a review of how Michigan Courts handle personally identifiable information relating to publicly accessible court proceedings.
Further to this review, these bodies have decided information such as date of birth (DOB) should be removed from records accessible to the public. The intention behind this decision is to minimise the risk of a defendant’s personal data being misused, either through identity theft or other threat.
Michigan have recently started removing date of birth from publicly available court records, with the intention of protecting the personally identifiable information of data subjects.
This change was received with questions and oppositions from employment screening companies. One of the requirements of the Fair Credit Report Act (FCRA) is that organisations observe reasonable procedures to ensure any reported information is accurate. In the absence of accessible personal identifiers on court records, such as DOB, it would be very difficult to establish whether a record related to a particular applicant, for example, when confirming or eliminating a possible name match.
Whilst there is an alternative state-wide criminal record check available, ICHAT, the service has its drawbacks as not all offences are shown.
In the days leading up to the proposed implementation of the new rule around the redaction of DOB from public records (30 June 2021) the Michigan State Court announced it would delay any changes until 2022. This postponement was intended to give organisations and the courts more time to consider required changes to process, whilst studying any issues the changes would create. Despite this postponement, a number of Michigan counties have already implemented the DOB removal process.
Whilst the changes Michigan Supreme Court administrative rule are for noble reasons, to limit ID fraud/theft, some lawmakers, business groups feel this will ultimately harm employers by preventing them from conducting effective employment screening. And so, this has led to a bill being discussed this week in the House Judiciary Committee which would effectively preserve the status quo, by prohibiting courts from redacting birth dates on public records so that background check companies can maintain ready access to those records for screenings.
The PBSA and other bodies have questioned the decision, and Michigan law makers have taken note, and may intervene in the coming months.
Implications for Screening.
In the context of employment screening, the decision means that you may no longer be able to determine with confidence whether an individual has been subject to criminal proceedings in locations that have removed DOB.
This will not only impact HR professionals hiring into Michigan, but also employers looking to hire an individual who has previously lived in Michigan. This will be of concern for employers who have a legal or regulatory responsibility to perform criminal record checks on staff or are required to ascertain whether individuals would be prohibited from occupying a particular position.
Given that comprehensive criminal record checks may no longer be possible, as a direct result of these changes, employers will be required to place greater reliance on other elements of screening. For example, employment referencing, education verification and gap verification could be used as an alternative method to confirm periods of activity or inactivity.
There are other services that may detect instances of criminality, such as compliance database and adverse media checks.
Compliance database checks are run against an extensive range of international, government, law enforcement, regulatory and financial databases, revealing potential links to bribery, money laundering, politically exposed persons, (alleged) terrorism, corruption, fraud, or miscellaneous risks.
Adverse media checks are searches of English language media for any potentially negative references to the recruit/job applicant. At Vero we use a specially devised search string to trawl more than 35,000 sources going back forty years.
We will continue to monitor the situation and feed back to our clients.
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