Know Your Rights: Criminal Background Checks for Michigan's Long-Term Care Workers
PREPARED BY THE SERVICE EMPLOYEES INTERNATIONAL UNION,
THE NATIONAL EMPLOYMENT LAW PROJECT,
AND LEGAL AID OF WESTERN MICHIGAN
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1. Why are long-term care organizations and businesses doing fingerprint background checks?
- Under a new Michigan law, many long-term care organizations and businesses are required to conduct fingerprint background checks. The law prevents employers from hiring you – even if they want to – if you have a record for certain crimes.
2. What kind of long-term care organizations or employers are covered by the law?
- The law applies to most licensed or certified long-term care employers, including certified home health agencies, nursing homes, county medical care facilities, adult foster care homes, homes for the aged, hospices, swing beds in hospitals, and psychiatric hospitals. These businesses may have different names, such as group home, assisted living, senior housing, retirement center, extended care facility, or home care agency. The owners and managers will know if the law applies to them and their employees.
3. What kinds of jobs are covered by the fingerprint law?
- Many jobs are covered by the law. The law covers all jobs that involve direct services to the people needing long-term care services, such as residents of nursing homes and adult foster care homes, clients or patients using swing beds in hospitals, and people living in their own homes who are visited by nurses, therapists, and companions. The law also covers any jobs where an employee has direct access to the people who use long-term care services, to their property, or to their personal information. So, people who work in the kitchen, the laundry, or an administrative office where medical and financial records are kept, are now required to have their fingerprints taken and to pass criminal background checks. The law does not apply to outside contractors who provide utility, maintenance, construction, or communications services.
4. How do employers check my criminal record?
- Employers started checking new employees in April 2006, and will begin checking current employees sometime in early 2007. Employers must check several different databases through a website to see if you are on an existing list of people who cannot work in long-term care, or if you have a disqualifying conviction in the state of Michigan.
- Once you are cleared on those lists, if the employer wants to hire you, the employer will ask you to get fingerprinted, and will set up the appointment for that to happen. It is important that you keep that appointment in order to be eligible for a job. There is no cost to you for the fingerprint except for the time and travel to the site.
- Once your prints are taken, they are sent electronically to the Michigan State Police and then on to the FBI. The FBI searches for convictions in other states, not just Michigan. You will receive a letter from the state of Michigan telling you if you are disqualified from employment.
5. Do I have to pay for the background check?
- In most cases no. However, if you work for a staffing agency, rather than directly for a facility, your employer may ask you to pay for the background check.
6. What crimes disqualify me from long-term care employment?
- Use the chart at the end of this packet to determine whether your conviction disqualifies you, and if so for how long. If you have more than one conviction, you will be disqualified if any one of your convictions disqualifies you.
7. I’m not sure if I’m disqualified or how long I’m disqualified. What can I do?
- It can be very difficult to tell if you are disqualified, or for how long you are disqualified. Employers often don’t understand the law either, and may want proof that you are eligible to work. To get information about your eligibility, consult your union, an attorney or legal aid office, the Michigan Department of Community Health, or the Michigan Department of Human Services. Contact information is at the end of this packet.
8. I’m already working in a job covered by the law. Can I keep my job if I have a disqualifying conviction?
- Generally yes. If you were working in long-term care prior to April 1, 2006, and if you have not had any disqualifying convictions since, you should be able to keep your job. You can work even if you have a conviction from before April 1, 2006 that would disqualify you if it happened now.
9. If I have a record and am currently working in a job covered by the law, can I go work someplace else?
- Maybe. You can transfer to a new job or a new job location through the same company. However, if you lose or leave your company, it may be very difficult to get hired again. You SHOULD NOT LEAVE YOUR CURRENT JOB unless you have completed the background check process and have officially been offered a job someplace else. Avoid any gaps in employment if at all possible.
10. How do I know what’s on my criminal record?
- It is very important to know exactly what is on your record and how old it is, so that you can accurately answer questions about your record. It is a good idea to get a copy of your record, so that you know what is on it.
- There are lots of mistakes on criminal records, and you will want to correct any mistakes BEFORE they cost you your job. You should check the same websites that employers do: the Public Sex Offender Registry www.mipsor.state.mi.us, the Offender Tracking Information System (www.state.mi.us/mdoc/asp/otis2.html), and the Internet Criminal History Access Tool (www.michigan.gov/ichat). (For information about free access to the Internet Criminal History Access Tool, click on “FAQs”.) You should also review your FBI record, especially if you have out-of-state convictions. If you cannot get a copy of your FBI record through your employer, call the FBI at 304-625-3878, or go to the FBI website at: www.fbi.gov/hq/cjisd/fprequest.htm.
11. What should I do if my record shows crimes I did not commit?
- If this occurs, you may be a victim of identity theft, or you may have the same name as someone who does have a record. If your Michigan State Police record is incorrect, call the Criminal Justice Information Center at 517-322-5531 and ask to do a “record challenge.” If another type of record is incorrect, consult an attorney, or go to www.aclumich.org/pdf/howdoiclearmyname.pdf for more information about how to correct your record. If you are being fired or denied a job because of an incorrect record, you should file an appeal with the Michigan Department of Human Services or the Michigan Department of Community Health within fifteen days after you receive the record. For information on how to appeal, see questions 15 and 16.
12. What happens to my fingerprints?
- Your fingerprints will be stored in a computer database which is accessible to the State Police. If you are arrested and fingerprinted in the future, the computer database will match your fingerprints. Then, your employer will be told about your new arrest.
13. If I am arraigned on or convicted of a new crime, do I have to report it to my employer?
- Yes. You must report to your employer if you are arraigned on, or if you are convicted of, any of the disqualifying crimes. The disqualifying crimes are all the crimes listed in the chart at the end of this packet. You must also report to your employer if you are found not guilty by reason of insanity by a court, or if a federal or state agency investigates and finds that you have committed neglect or abuse, or have misused resident property.
- If you are arraigned on a crime other than a disqualifying crime, you are not required to report it. However, because your fingerprints will be stored in a computer database and your employer will be notified by the government if you are arrested and fingerprinted again, it is a good idea to tell your employer any time you are arrested for or convicted of another crime. That way, your employer will find out from you, before he or she finds out from someone else. There is no need to report tickets, such as traffic tickets, unless the ticket is used to charge you with a crime.
- Make sure you talk to your defense attorney BEFORE talking to your employer. You do not want to say anything that will hurt you in your criminal case, and your attorney may want to challenge the requirement that you report your arraignment.
14. If I’m convicted of or arraigned on a new crime, will I be able to work in long-term care?
- If you are convicted of a disqualifying crime after April 1, 2006, you will not be able to work in long-term care. Even if you have worked in long-term care for years, the conviction will cost you your job. You will only be able to work again when the disqualification period for your crime is over. The length of time that you will be disqualified depends on the seriousness of your offense, and varies from one year, to three years, to five years, to ten years, to fifteen years, or to life. If you are arrested, it is VERY IMPORTANT to TALK TO YOUR DEFENSE ATTORNEY, to see if you can reach a plea agreement that will save your job.
- An employer must fire you if you are convicted of a disqualifying crime. However, the employer does not have to fire you just because you are arrested or arraigned on a disqualifying crime.
15. I’ve been told I’m not eligible to work because of my record. Can I appeal because I am getting my record expunged or because there are errors on my record?
- You can appeal if your record can be expunged or if your record is inaccurate. For information on how to get your record expunged, see question 19. If you can get your conviction expunged, you must appeal within 15 days of getting your expungement. You must provide court documents showing your record has been expunged. If your record is inaccurate, you must appeal within 15 days of getting the results of your background check. Write a letter explaining that your record is inaccurate, and include any proof that you have, such as court or police records showing the correct information.
16. If I’m told I’m not eligible to work, and I have disqualifying offenses on my record? Can I still appeal?
- You should appeal if you think a mistake has been made in determining whether you can work. First, you should appeal if you think the required number of years has passed since you were convicted, but you are still being told you cannot work. For example, a felony welfare fraud conviction bars you from working for 10 years after you complete probation. If you completed probation on a welfare fraud felony case 12 years ago, you are eligible to work, and should appeal if you are told you can not.
- Second, you should appeal if your crime was misclassified. For example, most misdemeanor assault convictions bar you for three years. However, if your misdemeanor assault is classified as a violent misdemeanor, you will be barred for ten years. If you have a misdemeanor assault conviction that is more than three years old, you should appeal, and argue that your conviction has a three-year ban, not a ten-year ban.
- Finally, if you worked in long-term care before April 1, 2006, you should appeal if you are told you cannot work. See question 17 for more information about appeals based on employment before April 1, 2006.
- In order to appeal, you must write to the Michigan Department of Community Health or Michigan Department of Human Services. You should write to whichever department sent you the denial letter. Make sure to appeal within 15 days. It is HIGHLY RECOMMENDED that you ask your union, an attorney, or a local legal aid office for help with your appeal. Contact information is at the end of this packet.
17. I used to work in long-term care. Can I get a new job despite my record?
- Possibly, but it may be difficult. The law says that if you worked in long-term care prior to April 1, 2006, you are eligible to work. However, if you apply for a new job, you must go through a background check. Once employers see your criminal record, they may think you are not eligible, and refuse to consider you. Or, if the employer does want to hire you, the Michigan Department of Community Health or the Michigan Department of Human Services might say that you cannot work because of your record. If you get a letter from the state of Michigan saying you cannot work, it is VERY IMPORTANT that you APPEAL WITHIN 15 DAYS.
- In order to prove that you are eligible to work, you must have documents showing that you worked prior to April 1, 2006 in a job that is now covered by the law. You can use documents like pay stubs or W-2 forms, or you can ask your former employer for documents from your personnel file. It is VERY IMPORTANT to GATHER AS MUCH EVIDENCE AS POSSIBLE about exactly when and where you worked. Proving that you are eligible to work is complicated. You should contact your union, an attorney, or your local legal aid office for help. Contact information is listed at the end of this packet.
18. I’m applying for a new job. What should I say about my record on the job application?
- Be honest. Lying about your record on your job application for long-term care employment is a crime under the new state law. In addition, because employers have to do background checks anyway, they will probably find out that you lied, and won’t hire you. The only time you do not need to list a conviction is if it has been sealed or expunged. However, it is generally best to list all sex offenses, even if they have been sealed or expunged, if the employer will see those offenses on the Public Sex Offender Registry.
19. How do I get convictions expunged off my record?
- You may be eligible to have your record expunged if you have only one conviction and it has been more than five years since you were convicted or released from prison. If your conviction is expunged, you do not need to disclose it on an employment application and it will not show up on a criminal background check (unless it is a sex offense). However, you cannot get an expungement if you have more than one conviction, even if your other convictions are just misdemeanors. If you think you might be eligible for an expungement, contact an attorney, or get a free expungement packet from your union. Expungement packets are also available at: www.michiganlegalaid.org.
20. What if I have a juvenile record?
- If you were adjudicated as a juvenile or if you successfully completed your probation under the Holmes Youthful Trainee Act, then you do not have a conviction record. Therefore, you can work in jobs covered by the law. If you are denied a job or fired because of a juvenile record, consult an attorney, your union, the Michigan Department of Community Health or the Michigan Department of Human Services.
21. My conviction doesn’t disqualify me, but I still can’t get a job. What should I do?
- Even if you are legally allowed to work, an employer can decide not to hire you based on your criminal record. Some long-term care employers and organizations simply won’t hire anyone with a criminal record. Still, it is important to make sure that employers understand you are eligible to work. You do not want to lose a job because an employer thinks you are not allowed to work under the law. Contact the Michigan Department of Community Health or the Michigan Department of Human Services and ask them for a letter confirming that you are eligible to work.
22. Whom should I contact?
If you are a member of the union, contact:
Service Employees International Union (SEIU)
419 South Washington
Lansing, Michigan 48933
American Federation of State, County and Municipal Employees (AFSCME)
1034 N. Washington
Lansing, MI 48906
419 S. Washington
Lansing, MI 48933
If you need free legal assistance, contact your local legal aid office (listed in the phone book), or call:
Counsel and Advocacy Law Line
16130 Northland Drive
Southfield, MI 48075
For other questions about jobs in nursing homes, home health agencies, county medical care facilities, hospice, hospitals with swing beds, and psychiatric facilities, contact:
For other questions about jobs in adult foster care or homes for the aged, contact:
Michigan Department of Human Services
Michigan Long Term Care Partnership
Office of Children and Adult Licensing
7109 W. Saginaw Street
P.O. Box 30650
Lansing, MI 48909
|Length of Time You are Barred From Working||Types of Conviction|
|Fifteen Years After Completion of Parole or Probation||
|Ten Years After Completion of Parole or Probation||
|Ten Years From the Date of Conviction||
|Five Years From the Date of Conviction||
|Three Years From the Date of Conviction||
|One Year from the Date of Conviction||
This packet was prepared with generous support from the JEHT Foundation and the Open Society Institute. This publication is not intended to replace the advice of an attorney. Because laws and procedures can change and because every individual situation is different, the authors cannot be responsible for any use to which this information is put.