Changes in Indiana Law Related to Access and Use of Criminal History in Employment
Effective July 1, 2012, House Bill 1033 (HB 1033) restricts employers and criminal history providers from inquiring about and obtaining certain criminal history information. As a result, employers should be aware that background reports may not provide a complete picture about an applicant or employee given the law's restrictions.
Restrictions on Information Sought and Disclosed
Indiana residents with "restricted" or "sealed" criminal records may legally state on an "applicant for employment or any other document" that they have not been adjudicated, arrested, or convicted of the offense recorded in the restricted records. Additionally, employers are explicitly prohibited from inquiring, whether in an employment application or orally, about the existence of sealed or restricted criminal history. Violations by employers are considered a Class B infraction and may result in a fine of up to $1,000.
Information Consumer Reporting Agencies (CRAs) and Employers Can Obtain from the State
The law, effective July 1, 2012, restricts certain information that employers and CRAs (e.g. background screening companies) can obtain from Indiana state court clerks. Specifically, the law prohibits courts from disclosing information pertaining to alleged "infractions" where the individual:
- Is not prosecuted or if the action against the person is dismissed.
- Is adjudged not to have committed the infraction.
- Is adjudged to have committed the infraction and the adjudication is subsequently vacated.
- Was convicted of the infraction and satisfied any judgment attendant to the infraction conviction more than five years ago.
An infraction is a violation of an ordinance or statute that does not subject the person to a criminal conviction or jail time. A traffic citation is an example of an infraction.
Second Wave of Changes Will Further Restrict Information Obtained by Employers
By July 1, 2013, the law will also restrict information that "criminal history providers" can report. A "criminal history provider," defined as a "person or an organization that assembles criinal 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," may only provide information pertaining to criminal convictions when obtaining criminal history information from the state. A background screening company, a type of CRA, is considered a "criminal history provider."
Furthermore, the law explicitly prohibits criminal history providers from furnishing the following types of information in background reports:
- 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 or converted to a Class A misdemeanor conviction.
- A record that the criminal history provider knows is inaccurate.
Specific to criminal history providers, effective July 1, 2013, the law permits the Indiana Attorney General to bring an action to enforce those provisions and seek civil penalties of $1,000 for an initial violation and $5,000 for subsequent violations. Further, the law provides legal remedies for aggrieved individuals to recover their attorneys' fees, costs, and damages.
Employers Next Steps
Employers should consult their counsel to understand how these changes directly affect them. Additionally, they should review current hiring and screening practices to ensure compliance with these new restrictions. For the complete text of the statute, please look here: http://www.in.gov/legislative/bills/2012/HE/HE1033.1.html
The above communication is intended for informational purposes only and does not constitute legal advice. Please consult qualified counsel to fully understand how the law affects you.
Photo credit, Lotzman Katzman.