Know Your Rights: Criminal Background Checks for Michigan's School Employees
PREPARED BY THE SERVICE EMPLOYEES INTERNATIONAL UNION,
THE NATIONAL EMPLOYMENT LAW PROJECT,
AND LEGAL AID OF WESTERN MICHIGAN
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1. What School Jobs are Covered by Michigan’s Background Check Requirement?
Michigan’s new background check requirement applies to anyone who is regularly providing instructional, food, custodial, transportation, counseling, or administrative services in a public or private school, or instructional or auxiliary services to special education students. Background checks are required whether you work for a school directly, or for a company that provides these services to a school. If you provide other types of contract services – such as construction or telephone repair – you do not need a background check. As a general rule, you will have to pass a criminal background check if you are employed by a school or if your job is located in a school.
2. I Currently Work in a School. Will I be Fingerprinted?
Yes. All current employees must be fingerprinted by July 1, 2008. In the past, your school or company may have checked your criminal history using your name, not your fingerprints. The name-based checks through the Michigan State Police only showed Michigan convictions. The new fingerprint background check will now list most convictions from other states. However, even if you were actually fingerprinted before, you will probably need to be fingerprinted again.
3. I’m Applying for a Job in a School. Will I be Fingerprinted?
Yes. Fingerprint criminal background checks will be conducted on all new hires.
4. Who Pays for Fingerprinting?
This is still being decided. Right now, if you are a current employee, the school is supposed to pay for fingerprinting. If you are a job applicant, you may have to pay for fingerprinting yourself.
5. What Convictions Will Keep Me from Working in a School?
If you were convicted of an offense that requires you to be listed on the Sex Offender Registry, you cannot work in a school at all. If you were ever convicted of a felony in any state, you cannot work in a school unless you get special permission from both the superintendent and the school board. You will need permission even if your felony conviction is very old. If you were convicted of a misdemeanor that is not a sex offense, you can work in a school. However, certain misdemeanor convictions may prevent you from working in particular school jobs.
6. How Can I Get Permission to Work in a School Even Though I Have a Felony Record?
If you have a felony, you will need permission from the superintendent and the school board in order to work. Every school district handles this process differently. Some have policies that they will not employ anyone with a felony record. Other school districts will consider factors like your work record, how long it has been since your conviction, and whether your offense is related to your job. Check with your school district to find out their policy.
7. Can I Present Evidence About Why I Should Be Able to Work Even Though I Have a Felony Record?
If you have a felony record, you should try to present evidence to your school district or company showing that you have been rehabilitated. Such evidence can include performance evaluations, letters of support, educational/vocational certificates, certificates from drug/alcohol treatment programs, or a personal statement from you about how you have changed. If you have already worked in a school for a long time, and/or if you have good performance evaluations, emphasize that.
Whether or not you get to present evidence in person to the superintendent or school board depends on the procedures in your school district. If your case is being considered at a school board meeting, you have the right to ask that the meeting be closed to the public. If you want help presenting your case, contact your union rep or an attorney.
8. Can I Get Permission to Work in a School if I’m Listed on the Sex Offender Registry?
No. If you were fired or denied a job because of a sex offense, the school cannot give you permission to continue working. However, if you are on the Sex Offender Registry for a juvenile offense that is not a conviction, you may be eligible to work, and should talk to an attorney. You may also be able to work if you can get your conviction expunged. However, most sex offenses cannot be expunged. See questions 9 and 10.
9. Can I Work in a School if I Have a Juvenile Record?
Yes, though depending on your offense you may find it difficult to get hired. 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 schools. If you are fired or denied a job because of a juvenile record, contact an attorney or your union representative.
10. Can I Get a Conviction Off My Record?
Maybe. To get a conviction removed from your record, you must go to court and “expunge,” or set aside, the conviction. You may be able to expunge your record if you have only one conviction. If your conviction is expunged, you do not need to disclose it on an employment application and it should not show up on a criminal background check. However, if you cannot expunge your record, your conviction(s) will remain on your record forever. Convictions do not drop off your record after a period of time has passed.
11. How Do I Get My Record Expunged?
You can expunge your record if you have just one conviction. If you have more than one conviction – for example if you have one felony and one misdemeanor – you cannot get an expungement. You must also wait until at least five years after you were convicted or released from prison, whichever is later. Certain convictions – including traffic offenses, most very serious convictions, and most sex offenses – cannot be expunged. If you are attempting to expunge a juvenile adjudication, you must be at least 24. If you think you might qualify for an expungement, contact an attorney, or ask your union representative for a free expungement packet. You can also get a free expungement packet at www.michiganlegalaid.org.
12. What if the School Wants to Hire Me Before My Record Comes Back?
The school can hire you as a conditional employee during the time it takes to process your criminal background check. You must sign a statement listing all the crimes for which you have been convicted. If the criminal background check later shows any other crimes besides those you listed, the school can fire you.
13. What Process Is Used to Fire People with Records?
In order to fire you, the school district must follow the termination procedures in your union contract, and in Board of Education policy. Those procedures may give you the right to a hearing. If you work for a company which provides contract services to a school, your rights will depend on whether you have a union contract, and if so, what is in your contract. Ask to have your union representative present at all meetings.
14. Should I File a Grievance If I’m Fired Because of My Criminal Record?
Yes. Most union contracts require “just cause” before you can be fired. Particularly in cases where you have been fired because of a felony record, rather than a sex offense, the school may not have had just cause to fire you. File a grievance and argue that the school is not required to fire you, and that your criminal record isn’t “just cause” for termination.
15. What Happens to My Fingerprints After the Criminal Background Check?
Your fingerprints will be stored in a computer database of Registered Educational Personnel (REP). The database is accessible to the police. In addition, an automated system is being developed to compare individuals in the REP database with those in the conviction database. This will happen twice a year. If the computer shows a match, the Department of Education will notify the school district that you have a conviction.
16. If I’m Charged With or Convicted of a New Crime, Do I Have to Report It to My School?
Yes, if you were charged with or convicted of a felony or certain misdemeanors. You must report that to the Michigan Department of Education and the school district within three business days. In addition, if you are convicted you must immediately tell the judge and prosecutor that you are employed in a school. To report your offense, use Court Form MC 292, which you can get from your attorney or from the court clerk. If you do not report the charge or conviction, you are guilty of an additional crime. Even though there are certain misdemeanors that do not need to be reported, it may be a good idea to report them anyway. If you do not, the state police may still report your crime under the computer matching system. You want your employer to find out from you about your case before he or she finds out from the police.
17. If I’m Charged With a New Crime, Should I Tell My Defense Attorney that I Work in a School?
Yes. Make sure to tell your defense attorney that you work at a school, and that you need to report your charge and/or conviction. If you are considering a plea bargain, ask your defense attorney if there is a deal that would make it easier for you to keep your job, such as a plea to a misdemeanor instead of a felony.
18. What Happens If I’m Convicted of a New Crime?
If you are convicted of a felony, you will need permission from the school board and superintendent to keep working. If you are convicted of a sex offense, you will be fired, even if your crime is a misdemeanor. If you are a teacher, even a misdemeanor conviction – depending on the crime – can cost you your certification to teach. If you are not a teacher or other state-certified employee, and if you are convicted of a misdemeanor that is not a sex offense, then in most cases you can continue working without any special permission. However, any employee who does not report the new conviction, can be fired for failing to report.
19. I’ve Been Placed on Administrative Leave While the School Investigates my Record. Will I Get Paid?
Whether you will get paid depends on what your crime was, what your union contract says, and what job you hold. If you were convicted of an offense that requires you to be listed on the Sex Offender Registry, the school is not allowed to pay you while it investigates. By contrast, if you were convicted of a felony, the law allows, but does not require, the school to stop paying you. In practice, many schools are putting employees with felony records on paid, administrative leave until they decide whether to keep the employees. If you are placed on leave and are not getting paid, talk to your union representative or an attorney for help.
20. I Was Arrested, but the Case Was Dropped. What Should I Do?
You should ask the school district and Department of Education to remove information about the charges from your record. You should also ask for any pay that was withheld. Finally, you should file a Motion for Return of Fingerprints with the court in order to get the arrest removed from your record. To file the motion, contact an attorney, or get a copy of Court Form MC 235 from your court clerk.
21. If I’m Asked About My Criminal Record on the Application, What Should I Say?
Be honest. If you lie, your school or company will almost certainly find out anyway, based on the background check. Then they will not hire you, even if your record would not disqualify you otherwise. If asked to disclose your record, make sure to list all of your convictions, including convictions out-of-state.
22. How Do I Know What Is On My Criminal Record?
Get copies of your record. It is very important to know exactly what convictions are on your record and how old they are, so that you can correctly answer questions about your record. If you do not answer questions correctly, you can be fired for lying. There are also lots of mistakes on criminal records. In addition, many records continue to show arrests, even where the case was later dropped. You will want to clean up your record before such inaccurate information costs you your job.
23. How Do I Get Copies of My Criminal Record?
You should get copies of both your Michigan record, and your FBI record. If your school district or company recently ran your record, ask for a copy. Alternately, you can:
- Check your Michigan record by going to the Internet Criminal History Access Tool (ICHAT) (www.michigan.gov/ichat). A record check costs $10. If you cannot afford to pay, click on “FAQs” for information about how to get a free copy of your record.
- Check your FBI record by getting your fingerprints taken at a police station. Then write a letter to the FBI asking for a record check. Include your name, date of birth, place of birth, and your complete mailing address. Sign the letter, and send it with the fingerprints and a money order or certified check for $18 to: FBI CJIS Division – Record Request, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306. If you cannot afford $18, you must include a signed, notarized statement that you are unable to pay.
24. How Do I Get Mistakes on My Record Corrected?
If your record contains inaccurate information about a Michigan conviction, get certified copies of the court documents or any other documents that show that the information is incorrect. Send this information to the Michigan State Police, Criminal Justice Information Center, 7150 Harris Drive, Lansing, MI 48913. If your record shows an arrest that did not result in conviction, you should also file a Motion and Order for Destruction of Fingerprints in the court that handled your case. Ask the court clerk for Form MC 235.
If your record contains inaccurate information about an out-of-state conviction, you must contact the state police records unit in the state where the conviction occurred. Call the Michigan State Police at 517-322-5531 for the address of police record units in other states.
25. What Should I Do if My Record Shows Crimes I Did Not Commit?
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 contains convictions that do not belong to you, call the Criminal Justice Information Center at 517-322-5531 and ask to do a “record challenge.” If your FBI record contains convictions that do not belong to you, you must contact the state police records unit in the state where the convictions supposedly took place.
26. Will Information about My Record become Public?
Schools may release the names of individuals with felony convictions or misdemeanor convictions for sexual or physical abuse. Many newspapers have been requesting this information. If you have a misdemeanor record that does not involve sexual or physical abuse, your name cannot be released.
27. Whom Should I Contact for Help?
If you are a member of a union, contact your union:
Service Employees International Union (SEIU)
419 South Washington
Lansing, Michigan 48933
American Federation of State, Municipal and County Employees (AFSCME)
1034 North Washington Avenue
Lansing, MI 48906
419 South Washington
Lansing, MI 48933
Michigan Education Association
1216 Kendale Blvd.
East Lansing, MI 48826-2573
If you need a referral to an attorney, contact your union or:
Michigan State Bar Lawyer Referral Service
306 Townsend Street
Lansing, Michigan 48933-2083
If you need free legal help, contact your local legal aid office (listed in the phone book), or call:
Counsel and Advocacy Law Line
16130 Northland Dr.
Southfield, MI 48075
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.