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June 18, 2013

Indiana's Revised "Second Chance" Law Prohibiting Employer Inquiries Into Certain Criminal Convictions Takes Effect July 1

Governor Mike Pence recently signed into Indiana law legislation allowing previously convicted individuals to seal or expunge certain portions of their criminal records. The law, known as Indiana's "Second Chance Law," prohibits employers from refusing to hire or otherwise discriminating against anyone because of a sealed or expunged conviction or arrest record. Employers cannot ask applicants or employees about sealed or expunged convictions. The law, effective July 1, 2013, provides suggested language for employers to use during the application process.    

How Does The Record Sealing Process Work?

Individuals convicted of a misdemeanor may petition the court to have their records expunged five years after the conviction; individuals convicted of a Class D felony may petition to have their records expunged after eight years. To expunge misdemeanors and Class D felonies, individuals must prove that they: 1) have not committed or been charged with other crimes during the five- or eight-year waiting period; 2) have successfully completed their sentence; 3) do not have a pending or existing driver's license suspension; and 4) have paid a filing fee. 

Depending upon the nature of the crime, more serious felonies can be expunged eight or 10 years after the completion of their sentence. Certain crimes must have the prosecutor's written consent for expungement.

Examples of crimes that can be expunged include aggravated battery, theft, operating a vehicle while intoxicated and dealing or possessing a controlled substance. Certain crimes, including homicide, manslaughter and certain sexual crimes, cannot be expunged.

What Does This Mean for Employers?

Because employers cannot discriminate against an individual because of expunged convictions and cannot inquire into those convictions, employers should examine both their applications and background check processes to ensure compliance by July 1. A violation of the law may result in a Class C infraction, and the violator can be held in contempt of court. Employers are also subject to civil suit and payment of attorney fees.

This overhaul of Indiana's Second Chance Law, originally passed to help combat growing unemployment of those convicted of certain crimes, arguably strikes a better balance than previous versions by removing obstacles to employment while simultaneously offering some — though not absolute — protection to employers. For instance, in any third-party suit against an employer alleging negligence or other fault based on the actions of an employee with an expunged record, the expungement order may be introduced as evidence of the employer's due care in hiring, retaining, licensing or certifying the employee. In theory, employers should not be held liable for failing to discover information about an employee that was not actually available, and employees are limited in their ability to repeatedly shield such information from discovery. With limited exceptions, an individual can have only one conviction expunged in a lifetime. 

If you are unsure whether your current forms and processes are in compliance with the new law, please contact Faegre Baker Daniels to assist you in your compliance efforts.

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