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If this headline sounds like déjà vu all over again, we have blogged on this law several times, most recently here . The latest changes to the Indiana “Second Chance” law went into effect on July 1, 2013,  and were brought about by Indiana House Enrolled Act No. 1482 (the “Act” ), and signed into law by Governor Mike Pence in May 2013. The new law applies …

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Shawnee (Kansas) District Court Judge, David Debenham has approved a petition to expunge a criminal record belonging a convicted murderer.  In the immortal words of Arnold Jackson from Diff’rent Strokes, I say “What you talkin bout Willis?”

Did this judge really just wipe out a murder conviction?  Nothing changed.  There was no new evidence to suggest this woman didn’t commit the crime.  Should he have the power to say “poof, now you see it, now you don’t”?

Here are the circumstances.  Kathleen Cobb murdered her boyfriend in Lawrence, KS in 1980.  She served 16 years and upon her release in 1998, got a degree in social workers degree in Wyoming and started working as a drug counselor.  This is definitely admirable and we applaud her efforts to help others.

She returned to Kansas in 2010 and began work at the Lawrence-Douglas County Housing Authority.  Again, this is a great development.  I am assuming the housing authority knew about her conviction and weighed that against the efforts and experience she had made since 1998.

That said, why on earth would a judge expunge the record.  Now, an employer will never know of the conviction if they conduct an employment background check.  It’s not even like she couldn’t get a job or her social workers license.  She’s done both.  Shouldn’t any future employer have the right to know this information?  She intentionally overdosed someone and then shot him in the back of the head.  She has paid her debt to society and by all accounts is a upstanding citizen.  But should such a heinous crime disappear like this?

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A Minnesota law student is lobbying hard for changes to her state’s expungement process.  Carly Melin, a law student at Hamline University School of Law, has drafted an amendment to her state’s expungement statute that would give courts the right to not only seal criminal records held by the judicial branch but those maintained at the executive branch (police departments, law enforcement agencies, etc.) as well. 

Law student in lobbying effort to make expungement more meaningful

By Michelle Lore, Minnesota Law – December 11, 2009

A local law student is leading an effort to get lawmakers to go back to the drawing board on expungement procedures.

Expungement is supposed to provide a chance for a fresh start by allowing criminal records to be wiped clean in some instances. However, a narrow statutory expungement mechanism and limits on the ability of judges to expunge nonjudicial records have combined to create a very messy situation for those in search of a clean slate.

Most criminal records — including those maintained by police departments — are held outside the judicial branch. Sealing judicial records provides little benefit when a potential landlord or employer can easily retrieve an arrest record from a local police department during a background check.

Hamline 3L Carly Melin has been working on an amendment to the expungement law that would give judges the power to remove the scarlet letter from a past mistake without leaving the smudge marks. In 2008, Melin and a fellow law student drafted an amendment to the state’s expungement statute that would give courts clear authority to seal criminal records held by executive branch agencies. They weren’t successful during the 2009 session, but Melin is planning to be back again lobbying for the change in 2010.

“I’m trying to get them to clarify the statute so that courts can start to provide a meaningful remedy for people,” she explained. “Right now there is basically no remedy for people who have criminal records.”

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We found this story on HR.BLR.com about a New Jersey police officer who sued the Morris County Sheriff’s Office for discrimination after he was denied protections of employment from another discrimination suit.  That’s right.  That was no typo.  Read on.

According to the story,  “In 1974, when he was 21 years old, “John” was arrested for breaking and entering, and pleaded guilty. In 1990, the court expunged the arrest and conviction from his record. John’s attorney explained that this meant the conviction had effectively never happened and that he would not be required to disclose it if anyone asked.

In 1994, John applied to become a Morris County Sheriff’s Officer. He indicated on the application that he had never been arrested or convicted of a criminal offense. He was hired and began working as an officer.

In 1996, during a blood drive sponsored by the Sheriff’s Office, John and his co-workers discovered that he had hepatitis C. He claimed that his co-workers began to harass him, refusing to shake his hand or eat with him, sanitizing everything he touched, and calling him “hepatitis boy.” John filed a report with his supervisors but claimed that they did nothing to alleviate the situation. On November 14, 2000, John signed out early and never returned to work. He submitted a formal letter of resignation on February 25, 2002.

John sued the Sheriff’s Office under the New Jersey Law Against Discrimination (NJ Rev. Stat. Secs.10:5-1 to -49). He complained that the Sheriff’s Office had discriminated against him for his medical condition and that it had allowed a hostile work environment to exist. The Sheriff’s Office countered that John’s 1974 arrest and conviction barred him from employment in the Sheriff’s Office, and that he could not sue because he had never disclosed that arrest and conviction.

The trial court concluded that John was obligated to reveal his prior conviction when he applied for his job, and that because he was thus ineligible for the job, he could not bring an employment lawsuit against the Sheriff’s Office. John appealed. The court of appeals reversed the trial court’s decision and sent the case back for trial. The Sheriff’s Office appealed to the state Supreme Court.”

Not so fast.  The state Supreme Court reversed the ruling saying that an expunged record could not have been considered on a background check the first place and that this was a veiled attempt by the department to divert attention away from the responsibilities to protect this officer against harassment in the workplace.

Check out the full story.

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The Wall Street Journal published an interesting story on today’s front page about the flood of expungement requests courts around the country are processing this year.  Why? Because nearly 80% of employers conduct background checks on prospective employees and in this economy, where you have more people competing for fewer jobs, even the slightest blemish can derail the chances of landing the perfect job. We recently published an article on this trend and others that have emerged in today’s economy entitled, “Background Checks in a Tight Economy“.

What is expungement?  Expungement is the term used for criminal records that can be erased, sealed or blocked from public view upon successful petition of the court.  The spectrum of criminal convictions eligible for expungement has traditionally been limited to only the most minor infractions and in most cases for those that are not habitual offenders.  The latest trend in states is to expand the spectrum of convictions in light of the current job market.

Check out the article below.

More Job Seekers Scramble to Release Their Criminal Past

U.S. job seekers are crashing into the worst employment market in years and background checks that reach deeper than ever into their pasts.

The result: a surge of people seeking to legally clear their criminal records.

In Michigan, state police estimate they’ll set aside 46% more convictions this year than last. Oregon is on track to set aside 33% more. Florida sealed and expunged nearly 15,000 criminal records in the fiscal year ended June 30, up 43% from the previous year. The courts of Cook County, which includes Chicago and nearby suburbs, received about 7,600 expungement requests in the year’s first three quarters, nearly double the pace from the year before.

One petitioner is Wally Camis Jr., who wanted to clear the air about the time he threatened two men with a hairbrush.

Mr. Camis was hungry for work amid a divorce last fall. The 41-year-old Air Force veteran, who had worked as a security guard and owned a restaurant, filled out an application for temporary employment in Eugene, Ore., checking a box saying he had never been arrested.

When he followed up a week later, the temp agency told him no thanks — they’d turned up a 1986 conviction. Stunned, Mr. Camis recalled the night the two men threatened him and he pulled a silver brush from his back pocket, saying it was a knife. He called the police, he says, and later pleaded guilty to aggravated assault with a deadly weapon, a misdemeanor. The judge entered a “no judgment” finding and ordered Mr. Camis to pay a $60 fine.

“I thought that was the end of it,” he says.

Instead, 22 years later, Mr. Camis found himself fighting to erase traces of the arrest, joining the growing ranks of Americans who hope that clearing their records of minor crimes will boost their odds in a tough job market. To help, entrepreneurs have set up record-clearing services and local governments have passed laws to speed the expungement process.

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Many criminal records don’t deserve to be expunged.  But who could argue this one?

‘The Friendship Nine Act’ would pardon segregation protesters

Local legislators sponsor bill to remove convictions

By Andrew Dys, The Herald – March 10, 2009

Finally, 48 years late, the nine black Rock Hill men who changed the world with their courage to fight segregation could get a pardon for committing a crime that should have been no crime at all.

The crime in 1961 in South Carolina was protesting segregation of the races — laws and customs later found to be unconstitutional and immoral. Yet the “Friendship Nine” spent 30 days in jail and have had criminal records all their lives for sitting at a whites-only Rock Hill lunch counter.

Those criminal convictions would be wiped clean forever under a bill that could be introduced in the Legislature as early as this week, lawmakers said. The proposed law would pardon those nine protesters, and so many others just like them around the state, for challenging segregation during the civil rights era.

The law would be named, fittingly, “The Friendship Nine Act.”

Click here for the rest of the story

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You might recall a couple recent posts where I respectfully disagreed with Ohio State Senator Shirley Smith’s proposed legislation that would allow some serious felonies convictions to be expunged from individual’s records. This was Senator Smith’s way of addressing the issue of those with convictions being excluded from jobs and the increase in recidivism rates when employment cannot be found.

That is a serious issue and one that deserves proper consideration. However, as I said before, inhibiting potential employers’ ability to make an informed decision is no way to address this problem. If such a measure was adopted, an employer that conducts background checks wouldn’t see the expunged conviction.

I was scheduled to meet with Ohio State Senator Lance Mason last week to discuss our concerns about this bill last week and I was looking forward to blogging about some of the ideas I had already discussed with his staffers. Unfortunately, Senator Mason had to cancel the meeting (it was for a very good personal reason). We are going to reschedule, but rather than wait for the meeting, I thought it would be nice to share one of Senator Mason’s remedies to this problem as relayed through his staffers.

Senator Mason believes that one such way to remedy the issue of re-entry into the workforce is to introduce tax credits to those that hire former convicts. I happen to believe that this idea has merit and am impressed with his ability to introduce a solution that serves all interests. I don’t know how it would be paid for, but in concept it doesn’t punish employers by keeping them in the dark about the people it hires and creates a way to get those who wish to enter the workforce after a criminal conviction to do so without having to lie on job applications or be fearful that past transgressions will automatically eliminate them from all employment opportunities.

This effort by Senator Smith is one we commonly see duplicated throughout the country. And in most cases, the intention is to make sure former convicts have a fair chance at assimilating back into their communities and can become productive memebers of society. These are honorable intentions. However, the ideas that Senator Mason has seem to strike a delicate balance of serving all parties involved.

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San fran skyline

Things aren’t getting any easier for employers in California. As I posted way back in February, San Francisco has banned the box. Effective August 13, 2014, employers in the city or county of San Francisco may no longer inquire about criminal history on employment applications or during interviews. It’s Ban the Box on steroids, and it may be coming to a city near you.

Titled The San Francisco Fair Chance Ordinance, No. 17-14, the new law prohibits both private and public employers with at least 20 employees from asking about a criminal past on the job application or in an initial interview. The law also restricts asking about criminal history on applications for affordable housing within the city. With respect to employment, the law applies to temporary workers, contract workers, and city contractors and subcontractors. The proponents of this and similar laws are trying to give ex-offenders a second chance by deferring questions about criminal history until after the application stage of hiring.

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Ban the Box Employment Background Checks

Ban the box has gone viral. And while the removal of this little check box has potentially made life easier for job seekers with a criminal past, it has created much confusion and frustration for employers. If you haven’t been in the loop, “ban the box” is the catchy phrase that refers to removal of the check box on a job application asking whether a candidate has been convicted of a crime. Ban the box shows no signs of slowing down, and it’s creating new headaches, not to mention real risks, for employers across the country.

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Indiana

Effective July 1, 2014, Indiana has a new rule on what information “criminal history providers” can report in employment background checks. This latest version of Ind. Code § 24-4-18-6 makes a technical correction to the law and clears up a few things.  Unlike previous versions of the statute, the new law allows reporting of non-conviction and pending records as long as the information is within the 7 year window required under the Fair Credit Reporting Act.

As it now reads, the law limits reporting of expunged records and sealed records—records that any compliant screening company wouldn’t give you anyway. It also prohibits reporting certain classes of felonies that have been reduced or converted to a misdemeanor, and creates a statutory cause of action for the intentional or “knowing” act of reporting an inaccurate record. [...]

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