June 2013 Volume XII No. 8 Taking Care of Business
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Indiana Employers: Note Employment Law Changes Effective July 1, 2013 Regarding Expunged Criminal Records

Shelbie Byers
Shelbie Byers

Indiana Governor Pence recently signed legislation, which provides that effective July 1, 2013 employers may not discriminate against employees and/or applicants due to expunged criminal records. Indiana employers must make sure their hiring and employment practices are in compliance by July 1, 2013.

Pursuant to House Enrolled Act 1482, Section 10, beginning July 1, 2013 it is unlawful discrimination for an employer to:

  • Suspend;
  • Expel;
  • Refuse to employ;
  • Refuse to admit;
  • Refuse to grant or renew a license, permit, or certificate necessary to engage in any activity, occupation, or profession; or
  • Otherwise discriminate against any person because of a sealed or expunged arrest record or conviction.

Employers that violate the non-discrimination provision face penalties, including a Class C infraction and Contempt of Court. Any person may file a petition seeking injunctive relief to prohibit violations.

Notably for employers’ legal interests, the law specifically provides, “A conviction that has been expunged under this chapter is not admissible as evidence in an action for negligent hiring, admission, or licensure against a person or entity who relied on the order.” Thus, it appears that the law provides a safe harbor defense in negligent hiring cases for employers who hire, unbeknownst to them, past criminals whose records were expunged.

At minimum, Indiana employers must ensure that during interviews they are not asking impermissible questions regarding expunged arrest records and/or convictions. Employers must also make sure that their Indiana employment applications are edited with respect to all questions regarding arrests and criminal history. We suggest using the approved statutory language on applications: “Have you ever been arrested for or convicted of a crime that has not been expunged by a court?”

If you have any questions about the employment law requirements effective July 1, 2013 or any other employment law matter, contact your Hoeppner Wagner & Evans LLP relationship attorney.

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