New Indiana Law Restricts Criminal History Information Reported in Background Checks Starting July 1

Starting July 1, 2012, new legislation in Indiana – House Bill 1033 (HB 1033) – restricts criminal history reporting in background checks by prohibiting certain pre-employment inquiries, restricting the types of criminal history information that employers and background check report providers – also known as “Consumer Reporting Agencies” (CRAs) – can obtain from Indiana state court clerks, and restricting the types of criminal history information that CRAs can report to employers in background check reports. The full text of Indiana House Bill 1033 is available at: http://www.in.gov/legislative/bills/2012/HE/HE1033.1.html.

Effective July 1, 2012, HB 1033 allows Indiana residents with restricted or sealed criminal records to state on an “application for employment or any other document” that they have not been adjudicated, arrested, or convicted of the offense recorded in the restricted records. Covered employers are prohibited from asking an employee, contract employee, or applicant about sealed and restricted criminal records.

Also on July 1, 2012, HB 1033 restricts criminal history information of prospective and current employees that individuals, employers, and CRAs can obtain from Indiana state court clerks by prohibiting 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; or
  • Was convicted of the infraction and satisfied any judgment attendant to the infraction conviction more than five years ago.

In one year, effective July 1, 2013, HB 1033 will restrict criminal history information that “criminal history providers” – defined in the law 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” – obtain from the state by making them only provide information pertaining to criminal convictions. Criminal history providers such as CRAs will no longer be permitted to provide the following information in background check 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; and
  • A record that the criminal history provider knows is inaccurate.

Also on July 1, 2013, criminal history providers such as CRAs may also “not include criminal history data in a criminal history report if the criminal history data has not been updated to reflect changes to the official record occurring sixty (60) days or more before the date the criminal history report is delivered.”

Beginning on July 1, 2013, the Indiana Attorney General may enforce provisions of the law by seeking civil penalties of not more than $1,000 for a first violation and not more than $5,000 for a second violation or subsequent violations. Any individual injured by a violation of the law may bring an action to recover the greater of actual damages, including consequential damages, or liquidated damages of $500 as well as court costs and attorney’s fees.

The use of criminal records by employers has become a hot topic in recent months. On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) – the agency that enforces federal laws prohibiting employment discrimination – voted 4-1 to approve updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The updated EEOC guidance, which “builds on longstanding court decisions and guidance documents that the EEOC issued over 20 years ago” and “focuses on employment discrimination based on race and national origin,” is available at: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

To help employers better understand how to use of criminal records, Attorney Lester Rosen, a background check expert and CEO of Employment Screening Resources (ESR), recently presented a webinar titled ‘Practical Steps Employers Can Take to Comply with the New EEOC Criminal Guidance’ to provide a pathway to compliance with the new EEOC guidance. A recorded version of the webinar is available at: https://www2.gotomeeting.com/register/781044434. (NOTE: For clients of Employment Screening Resources (ESR) who would like a recording of the special ESR ‘Client Only’ EEOC Guidance webinar held on May 31, 2012 or additional information about the EEOC Guidance, please contact ESR Customer Service at 415.898.0044 or customerservice@esrcheck.com.)

For more information about criminal background checks, visit Employment Screening Resources (ESR) – ‘The Background Check Authority’ and a nationwide background screening provider accredited by the National Association of Professional Background Screeners (NAPBS) – at http://www.esrcheck.com/, call 415.898.0044, or email customerservice@esrcheck.com.

Sources:
http://www.in.gov/legislative/bills/2012/HE/HE1033.1.html
http://www.littler.com/publication-press/publication/indiana-passes-new-legislation-restricting-criminal-history-informatio
http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

About Employment Screening Resources (ESR):

Employment Screening Resources (ESR) – ‘The Background Check AuthoritySM’– provides accurate and actionable information, empowering employers to make informed safe hiring decisions for the benefit for our clients, their employees, and the public. ESR literally wrote the book on background screening with “The Safe Hiring Manual” by Founder and CEO Lester Rosen. ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percentage of screening firms. By choosing an accredited screening firm like ESR, employers know they have selected an agency that meets the highest industry standards. For more information about Employment Screening Resources (ESR), visit http://www.esrcheck.com/, call 415.898.0044 or 888.999.4474 (Toll Free), or email customerservice@esrcheck.com.

About ESR News:

The Employment Screening Resources (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at tahearn@esrcheck.com.