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Sage Knauft, attorney at Walsworth law firm
Employers that conduct background screens need to keep up as states expand the types of criminal records eligible for sealing or expungement.
Mayor Muriel Bowser of Washington, D.C., recently proposed to wipe clean the arrest records of people who were not later convicted. Her plan joins a spate of efforts dubbed "second chance" or "clean slate" bills that would limit employers' access to criminal records of arrests without convictions, minor misdemeanors and even low-level felonies, to improve ex-offenders' job prospects.
Most states allow for criminal records to be sealed or expunged, although laws vary by state. Some states do not permit expungement, or they allow expungement under very limited circumstances. Dealing with sealed or expunged records can be tricky for employers conducting background screens because of differences in state laws and the presence of records tagged for sealing or expungement online or in databases that are then scooped up in bulk by consumer reporting agencies. There have been a number of lawsuits filed against employers for making employment decisions based on sealed or expunged records.
Sage Knauft, a partner in the Orange County, Calif., office of law firm Walsworth, discussed with SHRM Online what HR professionals should know about the legislative efforts to seal or expunge a broader array of criminal records and how to protect a company from liability in this area.
SHRM Online: Is there a trend toward states expanding the types of criminal records eligible for sealing and expungement?
Knauft: Yes, nationwide, there has been a recognition that the incarceration rate in this country is very high and the number of people with a criminal record is as much as 1 in 3. Often, criminal records serve as a "scarlet letter" that prevent ex-offenders from ever re-entering society and gaining employment. Legislative efforts have been two-fold: on the criminal side, to expand the types of offenses subject to sealing and expungement, and on the HR side, the ban-the-box ordinances. In California, for example, over the last couple of years, legislation has broadened the types of criminal offenses that are subject to having records sealed or expunged.
SHRM Online: What impact does this have on hiring?
Knauft: I could easily see an applicant bringing a discrimination claim based on [an employer] making a hiring decision from using records that were supposed to be sealed or expunged. As with anything else in HR, documenting everything is paramount when trying to avoid liability in hiring discrimination. I would absolutely dissuade HR from relying on criminal history information found online without further verification. Information on the Web can be dated or inaccurate and may not reflect a recent effort to have a record sealed or expunged.
Beyond that, HR is at the mercy of how up-to-date criminal history information is. Under many ban-the-box ordinances, if you receive a positive hit, you must explain to the applicant why that record may or may not impact your hiring decision and give [him or her] time to respond. I would think during that process, there would be some discussion about whether that record was supposed to be sealed or expunged. If that's the case, document that discussion before making an adverse decision based on that finding.
SHRM Online: What safeguards should HR employ to not inadvertently base hiring decisions on sealed or expunged records?
Knauft: First and foremost, keep up with all relevant laws. HR should know the phase of the hiring process [in which] they are permitted to make a criminal history inquiry and what they have to tell the applicant about their intent to run such a check. Employers would want to ensure they are using a reputable background screening vendor and to speak with [the vendor] about the safeguards [it uses] to ensure that positive criminal records hits are cross-referenced with county-specific records to see if there are any updates as to those convictions being sealed or expunged. Third-party vendors should not only run the search but verify the results, giving the employer another layer of protection.
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