Indiana's Criminal Expungement Statute

Earlier this year, Indiana passed a new criminal expungement law sometimes referred to as the "Second Chance Law." While the Second Chance Law received significant publicity in criminal justice circles, several aspects of the law received relatively little notice, including a provision that could have significant ramifications for employers governing how employees and applicants can respond to criminal background inquiries.

In general, the law allows certain classes of individuals to petition a court for an order significantly limiting most third parties' ability to access the individuals' prior criminal records. Employers have relatively little cause for concern regarding some of these categories, such as individuals who were arrested but never convicted and individuals whose convictions were subsequently vacated. However, the Second Chance Law also allows individuals who were duly convicted of a wide variety of crimes (and whose convictions were never vacated) to restrict public access to their criminal records eight years after they successfully complete their sentence (including any probation or other terms of release). For those employers who conduct criminal background checks as part of their application process, the Second Chance Law significantly restricts their ability to discover applicants' prior criminal conduct that may bear directly on their suitability for employment. Presumably, the law is premised on the notion that covered categories of criminal offenses should not function as barriers to employment once those offenses are eight or more years old though employers may understandably disagree. The law does contain exceptions that prohibit restricting access to records of crimes resulting in injury to persons or those classified as a Class C or higher felony.

The Second Chance Law contains clear instructions to law enforcement agencies and imposes criminal penalties on agency employees who fail to restrict criminal records as required by the statute or who disclose criminal records in violation of the statute. The final section of the law states that an individual who has received a court order restricting access to his criminal records in compliance with the statute may "legally state on an application for employment or any other document that the person has not been arrested for or convicted of the felony or misdemeanor recorded in the restricted records."

Indiana's Second Chance Law clearly aims to prevent employers from considering expunged/restricted criminal history information in hiring and employment decisions. However, unlike other states with similar laws, Indiana's statute does not create any express penalties for employers who ask questions of applicants designed to get around the Second Chance Law (i.e., by asking an applicant "did you decline to disclose any criminal information on your application because you have had that information restricted/expunged?"). Similarly, the law does not prohibit employers from considering restricted/expunged criminal history information that they acquire by virtue of an applicant's voluntary disclosure or, for example, a law enforcement agency's failure to comply with a restriction/expungement order. The law likewise does not address whether an employer can rely on otherwise restricted information inadvertently acquired from independent sources, such as when a current employee happens to be a friend of an applicant and informs the employer of the applicant's criminal history.

At present, many individuals may not yet be aware of their ability to restrict access to their own criminal records and are unlikely to have taken advantage of the expungement process. Employers are unlikely to learn about those who do successfully restrict access to their records unless an applicant inadvertently discloses such information during the interview process or the employer inadvertently learns about an expunged criminal conviction through independent sources. Unless and until the legislature amends Indiana's Second Chance Law, employers confronted with these circumstances should proceed with caution when making hiring or other employment decisions based on criminal convictions that are eight or more years old.