A proposed rule change in Michigan banning a person’s date of birth on their criminal record has the potential to bring hiring within the state to a standstill.
Advocates of the proposal say it’s designed to protect those who are in the system from identity theft. However, without a date of birth it’s nearly impossible for a background screener to provide a complete, accurate, and up-to-date background check.
The result makes landing a job a lot harder for anyone who has lived or worked in Michigan. And Michigan isn’t the only state eyeing a rule change like this.
We break down how the proposed rule change will affect job seekers and employers, and how you can help the screening industry band together to reverse this rule.
Michigan’s proposed rule change aims to remove dates of birth from all public records available at courthouses across the state. Lawmakers say removing a person’s date of birth protects them from having their identity stolen.
But the rule change has a potentially huge drawback – it will make it virtually impossible for Consumer Reporting Agencies (CRAs) to complete accurate background reports on job candidates who have lived or worked in Michigan. This includes people applying for remote positions, which could affect thousands of companies and millions of candidates who need to work from home because of the pandemic.
Without access to basic identifying information (such as date of birth) on court records, background check companies may be unable to verify if a criminal record truly belongs to a candidate. This puts employers at risk of hiring an individual who will create an unsafe working environment. Further, because regulation requires some employers to verify criminal history for some of their positions, they may be legally barred from hiring Michigan residents for those positions.
“Background checks will, best case scenario, be significantly delayed,” says Melissa Sorenson, Executive Director of the Professional Background Screening Association. “More like that they will come to a complete halt.”
The rule change aims to protect people’s sensitive information by removing a person’s date of birth from court records. However, a person’s date of birth isn’t considered sensitive information; It’s routinely used as a public identifier for things like picking up prescriptions or even including on a social media profile.
A date of birth is different from a person’s Social Security Number which is a unique and private identifier tied to a specific individual. Most people have only one SSN, unlike a birthdate that can be shared by many people. So, if a thief gains access to a person’s SSN, there is a much greater likelihood they can steal that person’s identity when compared to stealing a person’s birthdate.
Curt Schwall, Vice President of Compliance at EBI, explains it this way: “Date of birth is the best identifier in terms of background screening without posing a risk to somebody’s identity being compromised.”
Knowing that, let’s say a CRA like EBI does a search on a person named Michael Johnson and we find a criminal record. Normally, when a name match is found, our researchers will look at the birthdate and other identifiers, like middle initial, to make sure the Michael Johnson with the record is the same Michael Johnson applying for a new job. But if the rule goes into effect, and EBI can no longer see the birthday, there is no way for us to completely and accurately determine we’ve located the same Michael Johnson.
“We are required, whether it’s through the Fair Credit Reporting Act or the Consumer Financial Protection Bureau, we have standards of accuracy that we have to meet. And a name match simply does not meet those thresholds,” says EBI’s Schwall.
Without that information, background screening companies cannot provide a complete and up-to-date background check. It simply is not possible.
A similar court ruling has been popping up in California, too. A civil rights group is fighting to have birthdates and driver’s license numbers removed from public-facing court indexes across the state of California. The group claims having the information freely available negatively affected people who were “trying to move beyond their criminal histories and rebuild their lives.”
The case is now heading to the Supreme Court of California. The Professional Background Screening Association has joined with the Consumer Data Industry Association to lobby the Supreme Court of California to reverse the ruling in order to preserve the integrity of background screens.
They say the same issues could arise as in Michigan – if criminal background checks are impeded by a missing birth date, they won’t be completed, and people will miss out on jobs.
More than a dozen other associations representing California hospitals, hotels, and food delivery services have stated they’re concerned they will no longer be able to get accurate background checks.
The Michigan Supreme Court pushed the implementation date from July 1st, 2021, to January 1st, 2022, to give courts time to get ready. But there is still a chance to reverse this rule.
CRAs across the country are lobbying to kill the rule because it hampers the screening process and makes it difficult for anyone who has lived or worked in Michigan to get a job – especially if they work in the government sector where background checks are mandated by law.
Our flagship industry news program, Screening News Network, is helping keep you informed about these rule changes. Host Jennifer Gladstone is creating a video series about the proposed changes and the effects they may have on job seekers, employers, and CRAs. To learn more, watch these SNN videos:
If you have concerns about how this change could affect your background screening program, EBI can help. Email our Compliance Team.
Writer. Digital marketer. Storyteller. An award-winning writer and editor, Tricia O'Connor is the Marketing Content Manager at EBI. Tricia worked as a broadcast and print journalist for nearly two decades writing and producing programming for high-profile networks like ESPN Radio, History Channel, and Hallmark Channel, as well as contributing editorial work to publications nationwide. Tricia joined the EBI marketing team in 2019 and is responsible for content strategy, development, and engagement. Tricia earned a master's degree in journalism from the Medill School of Journalism at Northwestern University and is a proud undergraduate alumna of Wheaton College in Massachusetts.