In May, Indiana Governor Mike Pence signed a new law allowing individuals arrested or convicted of certain crimes, after a certain number of years from the conviction, to petition the court and request that the record of their conviction be expunged from the court’s files and from the files of the Department of Corrections and other government agencies. Certain crimes are excluded from the new law, such as sex or violent offenses, convictions for “official misconduct,” and other specific felonies.
Of most relevance to Indiana employers is Section 10 of the new law. Under Section 10, it is unlawful discrimination for any person to refuse to employ, or otherwise discriminate against, any person because of a conviction or arrest record expunged or sealed under the law. The law also affects the kinds of questions an employer may ask an individual about their criminal background. The law specifically states: “In any application for employment . . . a person may be questioned about a previous criminal record only in terms that exclude expunged convictions or arrests, such as: ‘Have you ever been arrested for or convicted of a crime that has not been expunged by a court?’” Any person who discriminates in violation of this law commits a Class C infraction and may be held in contempt by the court. In addition, the person discriminated against is entitled to injunctive relief.
The new law also seeks to provide some protection to employers in negligent hiring or retention cases. The law provides that an order of expungement may be introduced as evidence of the employer’s exercise of due care in hiring, retaining or otherwise transacting business or engaging in an activity with the person to whom the order of expungement was issued.
Employers should take care in revising their employment applications to comply with the law, and should advise those who interview applicants and make hiring decisions of the new requirements of the law.
For more information, or assistance in complying with the new law, please contact Mark McAnulty at MMcAnulty@KDDK.com or (812) 423-3183; or contact any member of the KDDK Labor and Employment Law Practice Team.
About the Author
Mark A. McAnulty, an Associate at Kahn, Dees, Donovan & Kahn, LLP, in Evansville, Indiana, practices business law and labor and employment law, and is a member of the KDDK litigation and trial services practice team. Licensed to practice in Indiana, Illinois, Kentucky, and Missouri, Mark has represented clients in administrative and judicial proceedings throughout the tri-state area. Mark counsels clients regarding hiring and disciplinary issues, as well as compliance with local, state and federal employment laws. Mark also works with clients in reviewing and drafting employment contracts, non-compete agreements, and employee handbooks; and has advised and represented employers in labor management and union avoidance matters.
