Indiana Passes New Legislation Restricting Criminal History Information Reported In Background Checks

The EEOC's April 25, 2012 updated enforcement guidance on the use of arrest and conviction records by employers has generated renewed and substantial interest in the controversial subject of criminal background checks in the context of Title VII of the Civil Rights Act of 1964. Although it is important for employers to review the EEOC's updated guidance, employers also need to be mindful of the increasing number of related state laws. The latest of these laws is Indiana House Bill 1033, which, starting July 1, 2012, will, in part: (1) prohibit certain pre-employment inquiries; (2) restrict the types of criminal history information that employers and background report providers (known as "consumer reporting agencies" or CRAs) can obtain from Indiana state court clerks; and (3) restrict the types of criminal history information that CRAs can report to employers in background reports.

Changes to Criminal History Information that Employers May Obtain from Prospective and Current Employees

The law provides that, effective July 1, 2012, residents of Indiana with restricted or sealed criminal records may legally 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. In addition, covered employers will be prohibited from asking an "employee, contract employee, or applicant" about sealed and restricted criminal records. The law does not define the term "employer," and does not specifically address what it means for applicants and employees to be able to "legally" state on documents that they do not have certain previous criminal records.

Changes to Criminal History Information that CRAs and Employers Can Obtain from the State of Indiana

Also effective July 1, 2012, the law will restrict information that individuals and businesses such as employers and CRAs can obtain from Indiana state court clerks. This affects the scope of information that employers can expect in background reports. 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; or was convicted of the infraction and satisfied any judgment attendant to the infraction conviction more than five years...