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Beyers: Law makes dishonesty legal on applications

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Indiana Lawyer Commentary

By Bill Beyers

beyers-bill-mug Beyers

This year, the Legislature made it easier for persons with a criminal history to obtain employment. Under Ind. Code 35-38-8, a person can petition the sentencing court to restrict access to his or her arrest and conviction records to all but law enforcement for a Class D felony or misdemeanor conviction that did not result in personal injuries. The court’s order would apply to state law enforcement agencies, the Indiana Department of Corrections, and state criminal records repositories.

To qualify for restricted access, eight years must have passed since the completion of the sentence and the person must have received no interim felonies. Perhaps the most perplexing part of the law is that, once a court grants the petition, the person “may legally state on an application for employment or any other document that the person has not been arrested for or convicted of the felony or misdemeanor recorded in the restricted records.” I.C. 35-38-8-7.

The primary goals of I.C. 35-38-8 were to boost employment and prevent recidivism among persons with a prior conviction. Obviously, the Legislature was concerned that employers were using prior convictions as a screening tool and that existing law was not strong enough to deter this prohibited hiring practice. An example of a screening tool would be automatically excluding all applicants with a prior conviction. Additionally, the Legislature may have been concerned that potential applicants, because of their prior conviction, were no longer employable for certain types of positions based an employer’s selective policy. For example, a bank would likely exclude a bank teller applicant with a theft conviction. The difference between a screening tool and a selective policy excluding applicants with certain types of convictions is that the selective policy is based on a business necessity whereas a screening tool arbitrarily excludes applicants solely for their prior conviction without relating the nature of the conviction to the job duties.

Before this new law, a selective policy based on a business necessity would have been permissible, but an arbitrary screening policy would have been against Title VII.

In 1987, the Equal Employment Opportunity Commission issued an opinion stating that employers could not use prior convictions as an absolute screening tool because it had a disparate impact among minorities; however, employers could consider the conviction if it related to a business necessity. Thus, this new law will not impose a new regulation on employers to prohibit them from using an arbitrary screening policy, but it will make it more difficult by restricting access to the conviction. Further, it may also undermine the employer’s interest in excluding applicants based on a business necessity.

In accordance with statutory interpretation principles, a court will attempt to construe I.C. 35-38-8-7 so that it has purpose and meaning. However, adding the protection of allowing applicants to legally lie on the application does not provide any more protection than applicants had before the law because most employment applications are not under oath. This begs the question of how a court may interpret this provision so that it has purpose and effect. Potentially, a court may interpret it as a new regulation on employers.

Simply put, if the applicant legally lies about a restricted conviction, the employer cannot terminate or refuse to hire the applicant based on that legal dishonesty. If interpreted in this manner, it may, in practice, impair employers from implementing a policy of discriminating against applicants based on a business necessity. Importantly, once the applicant restricts the conviction, the only way for the employer to learn of the conviction would be from the applicant. The Legislature apparently realized this and may have included I.C. 35-38-8-7 so that the applicant could lie with impunity whereas without this provision the applicant may have a much greater fear of being fired later for dishonesty. Interestingly, a strict interpretation of I.C. 35-38-8-7 may also allow the applicant to lie on a sworn application or “other documents.”

Until a court interprets I.C. 35-38-8-7, it will be difficult for attorneys to advise applicants as to whether they can lie to employers with impunity. Similarly, attorneys advising employers may have to caution their clients before terminating an employee for a “legal” lie because such action may result in a lawsuit for wrongful termination. Perhaps a better solution until the issue is resolved may be to adopt a “don’t ask, don’t tell” policy where hiring managers do not ask about nonviolent felonies or misdemeanor convictions in the last eight years and the applicant does not volunteer that information. This way the applicant does not have to lie about a restricted offense, and a background check will reveal any unrestricted convictions so that the employer can make an appropriate and permissible decision.•

Bill Beyers graduated in 2009 from Indiana University School of Law – Indianapolis and is an associate at Hume Smith Geddes Green & Simmons. The opinions expressed in this column are the author’s.
 

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  • Supreme Court Guidance
    The Supreme Court has instructed its trial courts and provided helpful practice pointers. See http://www.in.gov/judiciary/admin/pubs/trial-court/39-restrict-access.pdf

    Notably, the guide states that this new law is "an order restricting access [and] not the same as an expungement."
  • Law Not Understood
    In the present issue of this paper is a commentary stating that a law makes dishonesty legal.

    It may be that the writer does not understand the Law of Indiana as it applies to judgments in criminal cases.

    For many years there has been a provision of the Indiana Code that permits a Court to expunge a Court Record in certain situations. It is also possible to expunge a juvenile record, arrest record and other data.

    The statute cited has no bearing on lying or making it legal to lie. It is directed to the judgment entry of the trial Court.

    In the example set out by Mr. Beyers, a judgment was rendered on the date of a defendants' sentencing hearing.

    After eight years that defendant is allowed to file a petition under the new law. The Statute clearly expunges that record with the sole exception being the use by law enforcement.

    Under Indiana Law, if such a petition is granted, it would not be a lie to state on a job application that no prior arrest and conviction exists because it does not exist.

    The correct conclusion is that the Legislature has enabled a Court to alter the judgment in certain cases. Once it does so that judgment is altered wherein it no longer constitutes a criminal arrest or conviction---period.

    The fact that may confuse the writer is that law enforcement still has access to the historical record of the conviction. Of course that would be the case unless the Legislature wanted to alter a myriad of current statutes relating, inter alia, to habitual offender or substance abuse, license eligibility and so forth. It chose not to do that.

    The prospective employer has full access to the record made by any applicant but they do not have the power to alter a judgment issued
    by an Indiana Court. The Indiana Legislature has directed that only a trial court may do that.

    The focus here is not on a former conviction; rather it clearly is on the nature of a judgment in certain narrowly defined circumstances which is left to the discretion of a trial judge as to the existance of that verdict and judgment of criminal conviction.

    Once a Judge seals that record the Law of Indiana is that there exists no judgment of conviction or arrest and a statement to that effect is the truth.

    This situation is best handled by the sound discretion of a judge of competent jurisdiction and not a prospective employer or their attorney.

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  1. This guy sounds like the classic molester/manipulator.

  2. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  3. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  4. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

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