By Bill 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.