Cleaning the Slate – Indiana’s New Expungement Law, Part Two

*If blog reading seems a little too 2007 and you prefer YouTube, then check out my recent video about Indiana’s expungement law. While you’re there, subscribe and comment!*

The previous entry detailed the mechanics of Indiana’s new expungement statute and what it means for those with criminal histories.  But what about the HR department that makes hiring decisions?  Employers need to know what they can and can’t do in hiring and promotion decisions.

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Can job applicants make criminal records disappear?

Every hack stage magician learns to bring drama and pomp to a trick with a cloud of smoke and some magic words.  The magic words brings drama and officialness to pulling a rabbit out of a hat.  The law has magic words, too.

“Do you swear or affirm that you will tell the truth, the whole truth and nothing but the truth?”  Alakazam!  “We find the defendant guilty beyond a reasonable doubt” Abracadabra!

Employers have had magic words on job applications for years.  Often, these words pose the question, “Have you ever been convicted of a crime?” That question will need to change.  The new expungement law requires that businesses consider only non-expunged records.  So, the magic words will need to limit the question a bit, to “Have you ever been convicted of a crime which has not been expunged?” Open Sesame.

Discrimination on the basis of an expunged record is illegal.  An employer that refuses to hire (or promote) someone based on the person’s expunged record not only violates the new law, but opens itself up to civil litigation as well.

The tension comes in the fact that the digital age offers a wealth of information.  Expunged record requests don’t remove records from newspaper website archives or
Google history searches or any other place on the web.  Employers would do well to adopt policies prohibiting unapproved searches in advance of employment decisions.

Bad things await employers who don’t adapt to the new expungement law: civil infractions, contempt of court, and possible discrimination lawsuits await unwary employers.  It might not be getting-sawed-in-half bad, but still.

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Author: T. Andrew Perkins

I have practiced law in Rochester since 2001. My practice is varied: appellate law; general civil litigation; real estate; family law; and probate and estate planning. I am an active member in the Peru Grace Brethren Church. I have also served on the boards of various community organizations, including: Fulton County Community Foundation, Fulton County Leadership Academy, Fulton County United Way, Rochester Kiwanis Club, Fulton County Council on Aging, and the Fulton County Chamber of Commerce. You can reach my office from the Links page.

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