June 27th, 2014 | Sterling

Criminal History Information That Might Be Reported to Employers

Effective July 1, 2014, Indiana has a new rule on what information “criminal history providers” can report in employment background checks. This latest version of Ind. Code § 24-4-18-6 makes a technical correction to the law and clears up a few things.  Unlike previous versions of the statute, the new law allows reporting of non-conviction and pending records as long as the information is within the 7 year window required under the Fair Credit Reporting Act.

As it now reads, the law limits reporting of expunged records and sealed records—records that any compliant screening company wouldn’t give you anyway. It also prohibits reporting certain classes of felonies that have been reduced or converted to a misdemeanor, and creates a statutory cause of action for the intentional or “knowing” act of reporting an inaccurate record.

The Law

The law defines a “criminal history provider” to be 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.” The law is aimed at consumer reporting agencies (CRAs) that typically provide background checks to employers.

Under the law, a criminal history provider may not knowingly provide:

(1)   An expunged record

(2)   A record that is restricted by a court or the rules of a court and is marked as restricted from public disclosure or removed from public access.

(3)   A record indicating a conviction of a Class D felony (for a crime committed before July 1, 2014) or a Level 6 felony (for a crime committed after June 30, 2014) if the Class D felony or Level 6 felony conviction has been entered as a Class A misdemeanor conviction; or has been converted to a Class A misdemeanor conviction.

(4)   A record that the criminal history provider knows is inaccurate.

The law provides an exception for positions where there is a state or federal law requiring the employer to obtain the information. There is also a carve-out for states or political subdivisions using the information solely in connection with the issuance of a public bond.

The Bottom Line for Employers

Previous versions of the law were problematic, preventing employers from seeing pending cases and getting a full and accurate picture of an applicant before making a hiring decision. While non-conviction information is not always relevant, there are certainly instances where pending cases or records with alternative dispositions should be considered.  Some employers are actually required by law to take into consideration arrests or even dismissals of certain types of offenses. This new version sets the record straight as to what is fair game and what employers can expect to receive from their screening company.  A few tips:

• Indiana employers should check with their background screening providers to ensure that they are in compliance with the latest version of this law.
• Employers should review their employment applications and hiring documentation to ensure that they do not ask applicants or employees whether they have sealed or restricted criminal records.
• Employers and HR professionals responsible for screening should consider what types of criminal records they will use in the hiring process and make sure that their background screening policies take into account the EEOC guidance on the use of criminal history in the background process.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.