By Laura B. Conway, Attorney At Law
If you hire employees in Indiana, you need to read this article. On July 1, 2013, a new law came into effect in Indiana regarding the expungment of arrest and conviction records in Indiana. This new law was aimed at allowing people who have been arrested but not convicted and those who have been convicted of certain classes of crimes to have their records expunged and sealed by the Court.
This law affects businesses that hire employees in Indiana in two different ways.
First, the law makes it very clear that employers now have to change the questions they ask on employment applications and in interviews.
Indiana Code § 35-38-9-10 (a) states that it is unlawful discrimination to refuse to employ a person because of conviction or arrest record that has been expunged or sealed under Indiana law. This means that an employer cannot refuse to hire someone due to an arrest or conviction if that arrest or conviction has been expunged or sealed.
Does that mean an employer can still ask about that conviction so long as the employer does not discriminate against them because of it? Well, no… The law goes on to state that, “[i]n any application for employment, a license, or other right or privilege, 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 for a crime that has not been expunged by a court?’” See Indiana Code § 35-38-9-10 (c).
Therefore not only can an employer not fire a person for the expunged conviction, they also cannot even ask about the expunged conviction when they hire a person. If an employer is deemed to have discriminated against a person due to an arrest or conviction that has been expunged, that employer commits a class C infraction and can be held in contempt of Court for that action. Further the employer can be enjoined for committing such discrimination. A Class C infraction is punishable by a fine up to $500.00.
Although the law does not state it is an infraction to have the wrong question in the application or during an interview, the statute is clear that the employer cannot discriminate and goes on to state the exact question that may be asked by employers. Therefore a Court will not have to take much of a leap to find that by having the wrong question in the application the employer is discriminating against the person seeking employment. It is strongly advised that employers change their employment application and the questions they ask during interviews to comply with the statute.
The second way employers are affected by this new Indiana law involves with what can admitted as evidence if the employer is sued by a third party for negligence or other fault. The new Indiana law states that in an action for negligent hiring the conviction that has been expunged CANNOT be used as evidence against a person or entity. Here is an example of that situation:
XYZ Property Management Company hires Joe Doe. Joe Doe had a theft conviction on his record but that conviction was expunged. Therefore, when XYZ Property Management hired Joe, Joe did not have to disclose the conviction. One day Joe goes into one of the properties managed by XYZ Property Management and steals jewelry from the occupant. After Joe is caught the owner of the jewelry sues XYZ Property Management alleging negligent hiring of Joe. In that situation the evidence of the expunged conviction CANNOT be admitted as evidence against XYZ Property Management to support the contention that XYZ Property Management was negligent in their hiring of Joe Doe.
The new Indiana law also states that if there is a judicial or administrative proceeding alleging negligence or other fault against an employer, then the order of expungment CAN be introduced by that employer to show that an employer exercised due care hiring or retaining a person who had their record expunged. Here is an example of how this could work:
XYZ Property Management Company hires Joe Doe. Joe Doe previously had a theft conviction on his record but that conviction was expunged. Therefore, when XYZ Property Management hired Joe, Joe did not have to disclose the conviction. One day Joe goes into one of the properties managed by XYZ and steals jewelry from the occupant. After Joe is caught the owner of the jewelry sues XYZ Property Management alleging that XYZ Property Management was negligent in hiring Joe. XYZ Property Management could introduce the expungment to show that they had no reason to know of the conviction.
The bottom line is that this law makes the hiring process a bit more difficult in that employers now have to make sure not to request any information about expunged convictions or arrests. It should be noted that this article is geared toward employers, but the prohibition against discrimination applies in any decision to suspend; expel; refuse to admit; refuse to grant or renew a license, permit or certificate necessary to engage in any activity, occupation or profession; and any other type of discrimination against a person because of an expunged or sealed conviction or arrest record. Therefore the prohibitions against discrimination apply in rental and school applications too.
If you would like more information about the new expungment law or would like to see if your employment application is in compliance with the law, please contact Laura Conway at 317-686-4773 or Conway@indiana-attorneys.com.
