“Second Chance” in Indiana Part Deux: Law Restricts Use of Sealed and Expunged Criminal Records

Angela Preston

Indiana_3

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 to both Indiana-based employers as well as employers who hire workers in the State of Indiana. In addition to outlining the conditions and process by which ex-offenders can request the expungement or sealing of records, the law also has a direct impact on which criminal records employers can and cannot consider in the background screening process. Here are some highlights:

Employment Discrimination

Section 10 of the Act makes it unlawful for any person to refuse to employ, or to otherwise discriminate against, any person because of a conviction or arrest record expunged or sealed under the law. Violation of this section is a Class C infraction and can lead to a contempt order as well as injunctive relief.

Employment Applications

Any inquiry into an applicant’s criminal past on a job application must seek such information only in terms that exclude expunged convictions or arrests. The statute suggests the following wording: “Have you ever been arrested for or convicted of a crime that has not been expunged by a court?”

Negligent Hiring

The new law does provide some protection for employers who are prevented from seeing criminal records due to the statute. Employers who are sued for negligent hiring or negligent retention can introduce as evidence the order of expungement to establish meeting the standard of care (see section 10(f)). However, the underlying (expunged) conviction is not admissible in an action against an employer.

Reporting Criminal History

Other portions of the law that go into effect today, July 1, 2013, broaden the scope of responsibility and define “criminal history provider” as a “person or an organization that assembles criminal history reports and either uses the report or provides the report to a person or an organization other than a criminal justice agency or law enforcement agency”. A background screening company (CRAs) and commercial database companies would all appear to be criminal history providers under the law. The law requires a criminal history provider to:

(1) Update its records annually to remove inaccurate information and information that has been expunged, restricted, or limited; and
(2) only disclose certain information relating to a conviction.

Criminal history providers are now prohibited from reporting:

  • An infraction, an arrest or a charge that did not result in a conviction;
  • A record that has been expunged;
  • A record indicating a conviction of a Class D felony if the Class D felony conviction has been entered as Class A misdemeanor or converted to a Class A misdemeanor conviction;
  • A record that the criminal history provider knows is inaccurate.

Criminal history information may not be reported in an assembled report unless the provider updates the information to reflect changes to the official record occurring 60 days or more before the date the criminal history report is delivered.

The law also allows the attorney general and a person harmed by a criminal history provider to bring a private cause of action against the criminal history provider if the criminal history provider fails to update its records or discloses non-conviction information. Penalties may include statutory damages, actual damages including consequential damages or liquidated damages, court costs and attorney’s fees.

 

Angela Preston
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Angela Preston

Vice President of Compliance & General Counsel at EmployeeScreenIQ
Angela Preston has more than 20 years as a licensed attorney and over 10 years in the background screening area. She serves on the Board of Directors of the National Association of Professional Background Screeners (NAPBS), is a member of the NAPBS Background Screening Credentialing Council (BSCC), and is actively involved in the Society for Human Resource Management (SHRM) and ASIS International. Angela is also a member of the Ohio State and Columbus Bar Associations. Angela has direct oversight and management of compliance programs, and will provide guidance in complex legal matters including state and federal legislation, EEO law, client education, adjudication, pre/adverse action process, NAPBS Accreditation and client and vendor contract management.
Angela Preston
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