Chapter 17, Article 5, Division 6: Criminal Conviction Questions for City Contractors

Section 17-5-261: Purpose

The purpose of this division is to ensure that City contractors afford an individual who is qualified for a position, but has a criminal conviction, the opportunity to apply, and be considered, as an employee needed to fulfill the terms of its contract with the City.

Codified by Ord. No. 28-19 (JCC 7/23/2019, Passed 9/10/2019, Approved 9/11/2019, Published 9/20/2019, Effective 10/1/2019); Amended by Ord. No. 2021-47 (JCC 11/3/2021, Passed 11/16/2021, Approved 11/17/2021, Published 12/1/2021, Effective 12/1/2021).

Section 17-5-262: Definitions

For the purposes of this division, the following words and phrases shall have the meaning respectively ascribed to them by this section:

Adverse action means a decision by a City contractor not to hire or further consider an applicant for an employment position required to fulfill a covered contract with the City.

Applicant means an individual who has filed an application for any position of employment covered by this division.

Arrest means a record from any jurisdiction that does not result in a conviction and includes information indicating that a person has been questioned, apprehended, taken into custody or detained, or held for investigation by a law enforcement, police, or prosecutorial agency or charged with, indicted, or tried and acquitted for any felony, misdemeanor, or other criminal offense. Arrest is a term that is separate and distinct from, and that does not include, unresolved arrest.

Background check report means any criminal history report accessible through the Michigan State Police Internet Criminal History Access Tool (I-CHAT), courts, or by any consumer reporting, or employment screening, agency or business.

Conditional offer of employment means an offer by an employer to hire an applicant, which may be withdrawn only if the employer subsequently determines that the applicant (1) has a conviction record which, based on an individualized assessment as required by Section 17-5-266, would reasonably lead an employer to conclude that the applicant would pose an unacceptable risk in the position applied for, or (2) does not meet other legal or physical requirements of the job.

Conviction means a record from any jurisdiction that includes information indicating that a person has been convicted of a felony or misdemeanor, provided that the conviction Is one for which the person has been placed on suspended sentence or probation, fined, imprisoned, or paroled. Those matters identified in Subsection 17-5-264(a)(2) of this Code, about which an employer may not inquire and as to which they may not base an adverse action, are not considered convictions for purposes of this article.

Conviction history means information regarding one or more convictions or arrests, or unresolved arrests, transmitted orally or in writing or by any other means, and obtained from any source, including but not limited to the individual to whom the information pertains or a background check report.

Department means the Department of Human Rights, commonly referenced as the Department of Civil Rights, Inclusion, and Opportunity.

Directly-related conviction means that the conduct for which the person was convicted bears such a relationship to the employment sought that the employer may reasonably conclude that the applicant would present an unacceptable risk to the operation of the business or to coworkers or customers. Those matters identified in Subsection 17-5-264(a)(2) of this Code, about which a City contractor may not inquire and as to which they may not base an adverse action, are excluded from this definition.

Evidence of rehabilitation or other mitigating factors means, but shall not be limited to a person’s satisfactory compliance with all terms and conditions of parole or probation, however, provided that, the inability to pay fines, fees, and restitution due to indigence shall not be considered noncompliance with terms and conditions of parole or probation or both; employer recommendations, especially concerning a person's post-conviction employment; educational attainment or, vocational or professional training since the conviction, including training while incarcerated; completion or active participation in rehabilitative treatment e.g. alcohol or drug treatment; letters of recommendation from community organizations, counselors or case managers, teachers, community leaders or probation or parole officers who have observed the applicant since his or her conviction(s); and the age of the person at the time of the conviction. Successful completion of parole, probation, mandatory supervision, or post release community supervision shall create a presumption of rehabilitation. Examples of mitigating factors offered voluntarily by the person may include, but are not limited to, explanation of the precedent coercive conditions, intimate physical or emotional abuse, or untreated substance abuse or mental illness that contributed to the conviction.

Inquire means any direct or indirect conduct intended to gather information regarding a job applicant, using any mode of communication.

Legitimate business reason means the reason for the revocation of a conditional offer based on a finding that the applicant

(1) has a conviction record which, based on an individualized assessment as required by Section 17-5-266, would reasonably lead an employer to conclude that the applicant would pose an unacceptable risk in the position applied for; or

(2) does not meet other legal or physical requirements of the job; or both.

Unresolved arrest means an arrest that is undergoing an active pending criminal investigation or trial that has not yet been resolved. An arrest has been resolved if the arrestee was released and no accusatory pleading was filed charging him or her with an offense, or if the charges have been dismissed or discharged by the prosecuting attorney or the court.

Section 17-5-263: Applicability

(a) This division shall apply as follows:

(1) To all contracts, which the City enters into, whether for goods or services and whether or not subject to competitive bid, where the contract is for the amount of $25,000.00 or more; and

(2) To all employment positions required to fulfill the terms of a City contract covered by this division.

(b) This division shall not apply:

(1) To any employees who are hired by any City contractor in connection with contracts for goods or services that are not provided to the City; or

(2) To any City contract that is subject to Section 17-5-16 of this Code.

"Section 17-5-264: City contractor prohibited to inquire regarding criminal convictions of applicant to fulfill City contract prior to making a conditional offer of employment to the applicant; basis for adverse action

(a) Except as provided in Section 17-5-265 of this Code, City contractors shall not:

(1) Inquire about, consider, review, or require employment applicants to disclose conviction history as part of the employment screening process of their applicants for a covered position of employment until the contractor has extended a conditional employment offer to the applicant that commits the contractor to hire the applicant provided that the applicant passes the conviction history review and the applicant meets any other legal or physical requirements of the job.

(2) Base an adverse action in whole or in part on:

a. An unresolved arrest or an arrest not leading to a conviction;

b. Participation in or completion of a diversion or a deferral of judgment program;

c. A conviction that has been judicially dismissed, expunged, voided, invalidated or otherwise rendered inoperative by a court of law or by executive pardon;

d. A conviction or any other determination or adjudication in the juvenile justice system, or information regarding a matter considered in or processed through the
juvenile justice system;

e. A misdemeanor conviction that is more than five years old, measured from the date of sentencing; or

f. Except for positions requiring the operation of a motor vehicle in the course of employment, information pertaining to an offense or violation other than a felony or misdemeanor, such as a civil infraction. For positions requiring the operation of a motor vehicle, traffic violations or citations may be the basis of an adverse action.

(3) Include questions regarding or require applicants to make a disclosure on any employment application facts or details concerning any conviction history or any matter identified in Subsection (a)(2) of this section.

(b) Each application for employment required for the fulfillment of a City contract shall advise the applicant that the employer shall not inquire or otherwise seek information regarding an applicant’s criminal conviction history at any time prior to the issuance of a conditional offer of employment.

(c) It is the responsibility of the City contractor to ensure that each of its subcontractors, employees, and agents comply with this division.

Section 17-5-265: Exceptions to prohibition

(a) This division does not apply to the following:

(1) To performing a criminal history background check on applicants for positions for which local, state, or federal law or regulations require the consideration of an applicant’s criminal history for the purposes of employment; or

(2) To any facility or employment that provides programs, services, or direct care to minors or vulnerable adults.

(b) This division does not limit the right of an employer to notify applicants that laws, regulations, or company policies will disqualify an individual with a particular criminal conviction from employment in certain positions based on the requirements of those positions.

Section 17-5-266: Revocation of conditional offer based on an individualized assessment

(a) An employer may revoke the conditional offer of employment based on the discovery of a directly-related conviction or after determining that the applicant does not meet other legal or physical requirements of the position.

(b) If the revocation is based on the discovery of a directly-related conviction the revocation may be issued only after conducting an individualized assessment of the applicant which must include the following factors:

(1) The nature of the offense;

(2) The duties of the position sought;

(3) The time that has elapsed since the occurrence of the criminal offense;

(4) The applicant’s employment history before and after the offense;

(5) The age of the applicant at the time of the criminal offense; and

(6) The frequency and seriousness of the criminal offense(s).

Section 17-5-267: Notice of revocation of conditional offer of employment

(a) If a City contractor revokes the conditional offer of employment, the contractor shall issue a written notice of the revocation of the conditional offer of employment to the applicant.

(b) The notice shall state with specificity any criminal convictions or history relied upon in revoking the conditional offer of employment and the legitimate business reason for the revocation.

(c) The notice shall include a copy of any background check or criminal conviction history record relied upon in the decision to revoke the conditional offer of employment.

(d) The notice shall inform the applicant that the revocation is final unless the applicant submits a written objection to the revocation to the contractor within 14 days of its issuance.

Section 17-5-268: Procedures for challenging revocation of conditional offer of employment

(a) The applicant may, within 14 days of the issuance of the notice of revocation, submit a written objection, to the revocation to the contractor. The objection may include the following:

(1) Information bearing on the accuracy of the criminal history relied upon in the revocation of the conditional offer of employment;

(2) Evidence of rehabilitation or other mitigating factors; and

(3) Any Information pertaining to the legitimate business reasons asserted by the employer in its decision to revoke the conditional offer.

(b) The City contractor shall delay any adverse action for at least 5 calendar days after receiving the objection. During that time the City contractor shall reconsider the revocation of the conditional offer in light of the information provided by the applicant.

(c) The City contractor shall promptly notify the applicant of any final adverse action based upon the applicant’s conviction history or contents of the criminal background check. This notice shall advise the applicant of the applicant’s right to file a written complaint with the Department within 14 calendar days of the issuance of the notice.

Section 17-5-269: Department review of final adverse action

(a) The applicant may seek review of the final adverse action by filing a written complaint with the Department within 14 calendar days of the issuance of the notice of final adverse action.

(b) The Department shall complete its review within 28 days of the filing of the complaint and shall notify the contractor and the applicant in writing of its determination. The contractor shall promptly supply the Department with any records or documents associated with the application and the contractor’s decision upon the Department’s request.

(c) If the Department determines that the contractor has violated this division, the Department may deem the contract to have been breached as provided in Subsection 17-5-271(b).

(d) The Department shall forward an annual report of violations of this division to the City Council.

Section 17-5-270: Posting Requirement

Any employer subject to the terms of this division shall post a summary of the division’s requirements, in a form to be
supplied by the Department, in a conspicuous place on the employer’s website and premises, where applicants and employees will be most likely to notice and read it.

Section 17-5-271: Contractor required to submit affidavit with copy of application; contractor to verify compliance by subcontractors

(a) Prior to the submission of a contract to City Council for approval, each contractor, with which the City enters into a contract under this division, shall submit to the Office of Contracting and Procurement, as part of its contract package, a completed affidavit, which states under oath, that the contractor’s hiring policy is in compliance with this division with an attached copy of the contractor’s application to hire employees needed to fulfill the terms of the contract with the City. The affidavit shall be on a form, prepared by the Law Department, and provided to the contractor by the Office of Contracting and Procurement.

(b) Whenever a City contractor utilizes a subcontractor to fulfill the requirements of its contract with the City, the contractor shall provide documentation, as required in Subsection (a) of this section, for each of its subcontractors.

Section 17-5-272: Bid or proposal deemed non-responsive; contract in breach

(a) Where a bid or proposal fails to comply with this division, the bid or proposal is deemed to be non-responsive.

(b) Where a contractor fails to comply with this division, the City may deem the contract to be in breach.

Sections 17-5-273 to 17-5-280: Reserved