Category Archives: Industry Standards

On October 12, 2020, Michigan Governor Gretchen Whitmer signed a series of bills that drastically affect the state’s “set-aside” authority, informally known as “expungement.” The bills will establish a new automatic mechanism to expunge certain convictions without a person having to ask for it. They also significantly expand eligibility for expungement under the existing petition-based application system.

Governor Whitmer announced, “This is a historic day in Michigan. These bipartisan bills are a game changer for people who are seeking opportunities for employment, housing, and more, and they will help ensure a clean slate for hundreds of thousands of Michiganders.”

She also added, “This is also an opportunity to grow our workforce and expand access to job training and education for so many people. I am proud to sign these bills today alongside Lieutenant Governor Gilchrist and many of the bipartisan leaders who worked on them.”

In responding to the bills, Republican House Speaker Lee Chatfield said, “Everyone deserves the chance to build a good life for themselves and their families. But far too many people enter the criminal justice system and end up cut off from those opportunities and are pushed toward a cruel cycle of poverty and crime. That’s not right, and it creates bad outcomes for all of us.”

He argued further, “These bills are an important step to righting that wrong and helping good people who’ve paid their debt get back on their feet. I am glad we were able to find common ground on this important issue and deliver reform that will help people statewide.”

A huge shift for Michiganders

Hundreds of thousands of Michiganders are estimated to be eligible for expungement under these new bills. Relief will be delivered automatically to a significant percentage of them when the automatic feature is expected to become operative in October 2022, pending necessary appropriation and a potential 180-day extension.

This legislative package makes Michigan the sixth state to enact an automatic conviction-sealing law covering a range of offenses. It also makes Michigan the third state to make relief automatic for some felony convictions, joining New Jersey and California.

Under pre-existing Michigan law, eligibility for expungement was quite restrictive. One of the bills in Michigan’s newly expanded legislative package expands discretionary petition-based relief to an unlimited number of less serious misdemeanors and up to three felonies, giving Michigan one of the broadest expungement laws in the country.

Major changes aheadMichigan Updates Laws on Sealing of Convictions

The most significant bill in the package, HB4980, establishes an automatic mechanism to expunge convictions, meaning that relief would be granted without a person having to file any petition at all or even indicating that they wanted it. However, a broad range of crimes involving violence or dishonesty, or subject to a lengthy sentence, are ineligible for automatic relief. In the case of more serious misdemeanors and felonies, a person with more than one conviction for an assaultive crime (broadly defined) is ineligible for relief.

The remaining six bills reorganize Michigan law concerning petition-based relief, for the most part expanding eligibility for set-aside for an unlimited number of non-assaultive misdemeanors and up to three felonies.

Michigan’s bill would require its automatic relief system to be made operational two years after the effective date of the law.

On January 27, the Michigan governor signed HB 4411, which establishes provisions for credit service organizations.

The Agricultural Improvement Act of 2018, Pub. L. 115-334, (Farm Bill) removed hemp from the definition of marijuana under the Controlled Substances Act. Under the Farm Bill, hemp-derived products containing a concentration of up to 0.3% tetrahydrocannabinol (THC) are not controlled substances. THC is the primary psychoactive component of marijuana. Any product, including “Cannabidiol” (CBD) products, with a concentration of more than 0.3% THC remains classified as marijuana, a Schedule I drug under the Controlled Substances Act.

It is important for all employers and safety-sensitive employees to know:

1. The Department of Transportation requires testing for marijuana and not CBD.

2. The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.” The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.

3. The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana. Since the use of CBD products could lead to a positive drug test result, the Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.

On Dec 1. 2019 Grand Rapids, MI amended the “Human Rights” Ordinance affecting Discriminatory Housing and Employment Practices in regards to CRA’s (Consumer Reporting Agency) and background screenings. Although Michigan banned “Ban the Box”, the ordinance gets around this as it is characterized as a “discrimination law”.

In cases dealing with housing practices, an outright ban on prospective tenants with a criminal background is prohibited. History of a criminal conviction may be considered in
housing decisions, although arrest with no conviction may not be considered.

Landlords must carefully consider, on a case-by-case basis:
1. The nature and severity of the crime and;
2. The age of the individual at the time of the crime
3. Whether there have been repeated offenses and;
4. Whether the individual maintained a good tenant history before or after the conviction
5. Evidence of rehabilitation efforts and;
6. Whether the crime for which the individual was convicted may pose a demonstrable risk to the health, safety or welfare of other residents or persons (which would include manufacturing or distributing
illegal drugs) or to property.

In cases dealing with employment practices, the ordinance states no employer shall discriminate against a current or prospective employee with respect to hiring, tenure, terms, conditions, or privileges
of employment, or any matter directly or indirectly related to employment, unless
such action is based on a bona fide occupational qualification.

Bona fide occupational qualifications shall include:
1. Safety-Any decision based upon the reasonable and well-substantiated
belief that an individual’s physical or mental health poses a serious threat to
the health, safety, and welfare of the individual or other employees or
customers
2. Conviction Record-History of a criminal conviction may be considered in
employment decisions, although arrest with no conviction may not be
considered. An outright ban on prospective employees with a criminal
background is prohibited.

Employers must carefully consider, on a case-by-case basis:
a. The nature and severity of the crime and;
b. The age of the individual at the time of the crime
c. Whether there have been repeated offenses and;
d. Whether the individual maintained a good employment history before or after the
conviction
e Evidence of rehabilitation efforts and;
f. Whether the crime for which the individual was convicted may pose a demonstrable risk to the health,
safety or welfare of other employees or persons or to property.

Employers, property owners/management along with CRA’s need to adjust their policies and practices according to this ordinance.

Here at Bottom Line Screening, we do not believe in charging for file disclosures beyond the free file disclosure specified under 612(a)-(d) of the FCRA.

Yearly, the CFPB calculates the dollar amount of the maximum allowable charge for disclosures by a CRA under the FCRA.

For 2020, the ceiling on allowable charges under section 612(f) of the FCRA will be $12.50, unchanged from 2019. The Bureau is using the $8.00 amount set forth in section 612(f)(1)(A)(i) of the FCRA as the baseline for its calculation of the increase in the ceiling on reasonable charges for certain disclosures made under section 609 of the FCRA. Since the effective date of section 612(a) was September 30, 1997, the Bureau calculated the proportional increase in the CPI-U from September 1997 to September 2019. The Bureau then determined what modification, if any, from the original base of $8.00 should be made effective for 2020, given the requirement that fractional changes be rounded to the nearest fifty cents.

The final rule is available in the link below:
Federal Register

The materials contained on this website have been prepared by Bottom Line Screening, LLC and are intended for informational purposes only and are not legal advice.

FCRA lawsuits increased 4.3% from 2017 to 2018 with Amazon, Delta Airlines and Uber being among some of the top organizations paying out millions. The top three violations occur when the employer:

1. Fails to “separate” the Disclosure & Authorization forms as they are to be considered “stand-alone”.
2. Fails to provide either pre-adverse and/or post-adverse action notices, and
3. Neglects to inform the applicant of his/her FCRA rights.

On August 26, 2019, it was announced by an Oklahoma judge that Johnson & Johnson is ordered to pay $572,102,028 of the asking $17 billion to help the crisis and the recovery of Opioid addicts in the state.

The state argued that J & J marketed opioid drugs to doctor’s offices knowing their addictiveness and the risk of addiction. Opioids are marketed to physicians by pharmaceuticals companies often showing up before they open giving out free trials and samples and offering incentives for the purchase and push of the prescription pills.

According to the Center of Disease Control and Prevention, 70,237 deaths were reported in 2017 due to overdosing. It is only imagined what that number is today.

“Consumer report” is the name of the background check document. A consumer report includes more information than traditional Credit Reports

A consumer report is a document containing information that bears on a consumer’s creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living

Under the FCRA, these reports may be used to establish the consumer’s or applicant’s eligibility for:
employment; or
other purposes allowed by the FCRA

The consumer report may include arrest information, criminal records from other states, aliases, employment verification reports, and addresses and phone numbers used by the applicant