Many employers ask on their employment applications whether the applicant has ever been convicted of a felony or misdemeanor. Often a failure to truthfully answer that question is considered to be cause for either rejecting the applicant or for a later discharge if the lie is discovered after the person is hired. A new Indiana law now appears to allow persons convicted of certain crimes and misdemeanors to “legally lie” about their past criminal history.
The “Legal Lie”
On July 1, 2011, a new Indiana law [I. C. 35-38-8-7] went into effect that allows persons convicted of non-violent misdemeanors and certain felonies to petition a court to restrict access to the records and, if the court grants the petition, to “legally state on applications for employment and any other document that the person has not been arrested for or convicted of the felony or misdemeanor recorded in the restricted records.” Although the precise meaning and effect of this law is, as yet, unknown, this law could potentially impact how employers make hiring decisions.
The law, available in full at http://www.in.gov/legislative/bills/2011/HE/HE1211.1.html, states that eight years after a person completes his or her sentence, that person may petition the sentencing court to restrict access to the records concerning his or her conviction. The law does not apply to sex or violent offenders and certain juvenile offenses. The sentencing court will grant the petition if the petitioner is not a sex offender and the petitioner was convicted of a non-violent misdemeanor or a Class D felony (Class D felonies include certain non-violent felonies, such as drunk driving, theft, dealing or possession of marijuana, etc.), so long as the petitioner has not been convicted of another felony since. The court’s order restricting access to the person’s records also applies to repositories of criminal history information, and those repositories would be prohibited from disclosing that criminal history information without a court order.
Considerations for Employers
This new law appears to condone a lie that could be material in certain employment settings. It poses some very interesting questions for employers that won’t be answered until courts rule or the Indiana General Assembly steps in to clarify the law’s scope. Here are some things for employers to consider:
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The law does not contain a specific prohibition or penalty provision if adverse employment action is taken based on the person’s “legal lie.”
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However, if adverse action is taken because the person “lied” – albeit “legally” – about a past conviction action, the employer may be at some risk under Indiana common law for wrongful discharge for terminating an employee for exercising a legally protected right (i.e., legally stating the absence of a conviction as permitted in this law).
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Consider adding a new question to employment applications and other similar documents that asks: “Do you have records in the non-juvenile criminal justice system that have been restricted from disclosure by a court pursuant to I. C. 35-38-8?” The substance of this suggested inquiry appears in the law itself [I. C. 35-38-8-6] and is allowed when the person whose criminal records have been restricted is the plaintiff in a lawsuit where the criminal history information could be relevant.
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Consider that requesting information about arrest records has long been considered potentially discriminatory under Title VII and should not be asked of an applicant for employment.
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Consider that the EEOC has recently been focusing on employment decisions based on criminal convictions and the discriminatory adverse impact those decisions have on certain minority groups.
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Consider that, in light of the EEOC’s position, it is best to consider criminal conviction records based on relevance to the job and the length of time since the criminal activity occurred.
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Consider limiting questions about applicants’ criminal records to the last eight years.
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Employers in the health care industry should also be aware that this law permits a person to legally state “on an application for employment or any other document that the person has not been arrested or convicted of the felony or misdemeanor recorded in the restricted records.” Because the language used in the law is so broad, it could apply to a host of other documents that request information about criminal records, such as applications for medical staff privileges, provider applications to payor programs and applications at the licensing level.
The Bottom Line
The bottom line for employers is that it may be a very rare occurrence for any person to have taken the steps to petition a court eight years after completing his or her sentence to restrict access to his or her criminal history records and then actually “legally lie” about the conviction. Nevertheless, if an employer believes that a person has “legally lied” about a past conviction, it would be best to carefully consider the current state of the law before taking any adverse action based on the “legal lie.”
Should you have questions, please contact your regular Hall Render attorney or a member of our Employment and Labor Section.
