Michigan Bans the Ban: New Law Stops Local Government Regulations on Employer Inquiries

On March 26, 2018, Governor Rick Snyder signed an amendment to Michigan’s Local Government Labor Regulatory Limitation Act into law. Public Act 84 (2018) prohibits local government bodies from adopting or enforcing any local policy, resolution, or ordinance that regulates what a prospective employer must request, require, or exclude during the interview process or on an application for employment.

Under the law, local government bodies in Michigan lack the authority to implement “don’t ask” ordinances and may not use local ordinances to regulate business hiring decisions made by private employers. For example, a county could not implement a “ban-the-box” rule limiting when criminal history information about an applicant may be considered or used by employers. Likewise, a city in Michigan may not follow the lead of cities like San Francisco and Philadelphia and prohibit private employers from asking, during an interview or on an application, about a prospective employee’s wage history.

Local government bodies include cities, villages, townships, counties, public school districts, intermediate school districts, public school academies, community colleges, local public boards, agencies, and commissions.

Key Takeaways for Employers

For supporters of the law, it means that employment and labor laws, such as crucial anti-discrimination laws, remain the purview of the state and federal governments and preempt local ordinances. Local governments may not use “local control” to implement a patchwork of burdensome regulations on businesses and potentially create a confusing patchwork of overlapping local, state, and federal laws. For detractors, the law stymies local control over “fair chance” policies and precludes local efforts to remove barriers to employment opportunities.

There is an exception in the law allowing a local government body to require a criminal background check for any employee (or potential employee) in connection with receiving a license or permit from the local government body.

Michigan-based employers should not assume that the recent amendments provide a free pass to ask impermissible questions during the hiring process or otherwise engage in discriminatory practices. Michigan’s Elliott-Larsen Civil Right Act and Persons with Disabilities Civil Rights Act are long-standing, comprehensive statutory schemes that prohibit discrimination, harassment, and retaliation in employment, including during hiring. Applicants as well as existing employees are protected against a wide range of prohibited practices, and Michigan’s list of protected characteristics, which includes height, weight, and marital and familial status, is more expansive than the federal Title VII of the Civil Rights Act’s protections. Employers should also be aware that, relative to hiring, the Michigan Department of Civil Rights publishes in its Pre-Employment Inquiry Guide a list of prohibited questions that may not be asked at the hiring phase, including during interviews.   

Bottom line: Even though local government bodies are barred from creating ordinances in this space, significant statutory protections for applicants and employees exist under Michigan law, and employers are already required to follow them.

The law becomes effective in 90 days.

The new Michigan law and similar laws in other jurisdictions, including all federal and state background check requirements, are summarized in the firm’s OD Comply: Employment Applications subscription materials, which are updated and provided to OD Comply subscribers as the law changes.