Expungement laws in the United States have undergone significant changes in recent years. As “Clean Slate” and “Second Chance” legislation gains traction in numerous states, HR professionals must grasp the consequences of these changes for their hiring procedures.
This guide examines the expanding expungement landscape, the realities of criminal records in hiring, potential pitfalls for employers, and best practices for HR to ensure compliance and fairness.
The Expanding Landscape of Expungement
More and more states are passing laws to make it easier for people with criminal records to have their records erased or sealed. This is called expungement. Expunging records can assist individuals in obtaining employment, housing, and education.
Understanding the various state laws on expungement can be challenging for HR teams. It’s a good idea to talk to an expungement lawyer, especially if your company hires people in many different states. They can ensure compliance with the laws and establish effective procedures.
Here are some notable developments:
- Some states like Pennsylvania, Utah, and Michigan are now automatically clearing certain records without people having to ask. This means more records are getting expunged.
- Many states have lowered the wait time before people can ask to expunge records. Some states used to make people wait 5, 10, or 15 years.
- More states are letting people expunge felonies, violent crimes, and sex crimes.
The chart below shows which states have expungement laws. With different laws in each state, it’s important for human resources teams to know the rules where they hire people.
Data Source: Collateral Consequences Resource Center
The Realities of Criminal Records in the Hiring Process
1. Expungement Laws Create New Hiring Considerations
More and more states now have expungement laws. These laws allow people to seal certain criminal records. Sealing records gives folks a fairer chance at getting jobs.
But for employers doing background checks, expungement also creates new challenges. Employers now need to understand each state’s expungement rules. They need to know which records may be sealed from background checks.
Following expungement laws in every state takes extra work for human resources teams. But it helps employers give people with records a fair shot. And it keeps background checks fair and legal.
2. Ensuring Fair, Compliant Hiring Practices
When hiring, employers need to treat all candidates fairly. They can only consider someone’s criminal history at the right time. Asking about records too early could discriminate against those who had records expunged.
3. Staying Current on Changing State Laws
Employers also must stay up to date on changing expungement rules. Different states seal different types of records after different periods of time. A conviction that shows up on a background check in one state may be eligible to be expunged in another.
4. Evaluating Relevant, Recent Convictions
Employers should focus on recent, serious convictions relevant to the job duties. Old, minor offenses that show up shouldn’t impact hiring choices. Nor should unrelated convictions, like financial crimes for a childcare role.
5. Following Best Practices
There are best practices companies should follow around expungement laws. This includes revising policies, training staff, using reputable screening firms, letting candidates appeal disputed records, and more.
6. Emphasizing Qualifications, Not Past Mistakes
The hiring process should emphasize skills and fit over someone’s past mistakes. But employers do need to balance this with safety for staff and customers. It requires a case-by-case evaluation of applicants as whole people.
7. Providing Second Chances
Expungement laws aim to improve opportunities for those with convictions. Employers play a key role in giving second chances to qualified workers with records cleared by these reforms.
8. Conducting Accurate Background Checks
Relying only on online criminal records can also lead to mistakes. Online databases aren’t always accurate or up-to-date. A thorough background check requires checking official state-level sources.
Best Practices for HR Professionals
1. Check Expungement Laws Often
Look at the rules about cleared records in every state where you hire people. Read any new changes to the laws. Talk to a lawyer if you don’t understand the laws and need help interpreting them correctly. Stay on top of any updates so you know the current regulations.
2. Focus On Recent and Related Records
Old, minor, or unrelated records should not impact hiring decisions. Focus on evaluating all candidates in a fair way. To further enhance employee engagement, consider implementing strategies to support candidates with expunged records during the onboarding process. This could include mentorship programs, training initiatives, or other employee engagement ideas aimed at helping them integrate smoothly into the workplace. For example, you could start an employee engagement program or take steps to improve employee engagement through inclusion initiatives.
3. Partner With Good Screening Companies
Work with background check companies that are quick to update their systems when records are cleared or expunged. Make sure they rigorously follow fair report rules and regulations at both state and federal levels. Select vendors with transparent processes and solid reputations around accurate, ethical checks.
4. Double-Check Online Records
If you find a concerning criminal record for someone online, take time to check the official state or court databases as well. Make absolutely sure the online record matches the official sources before deciding not to hire the person based solely on it. Don’t let unverified online data lead to unfair exclusion.
5. Document Background Checks Carefully
Keep very detailed, organized notes on every step of the background check process for each and every candidate. Make sure it’s conducted and documented in exactly the same thorough manner for everyone. This protects against claims of inconsistent or biased checking processes.
6. Ask About Records Later
Only ask people about their criminal history later in the hiring process, such as at the job offer stage. This avoids unfairly treating those with expunged records differently right from the start. Wait until the applicant has had a chance to showcase their qualifications before asking about their record.
Potential Pitfalls for HR Professionals
The expansion of expungement accessibility has implications for HR teams involved in recruiting and hiring. Some key risks include:
Unintentionally using sealed or expunged records: HR professionals may inadvertently consider records meant to be sealed or destroyed in hiring decisions if they lack an understanding of relevant expungement laws.
Insufficient documentation: Without proper documentation procedures, employers may face lawsuits alleging discrimination if they claim an expunged record formed the basis of a hiring denial.
Unverified online records: Relying solely on unverified online criminal record results can perpetuate the discrimination expungement laws aim to prevent.
- What are the differences in expungement laws across states?
There is significant variation across states regarding offenses eligible for expungement, waiting periods, burdens of proof, and availability of automatic record clearing. HR teams recruiting nationwide must familiarize themselves with these differences.
- How can HR professionals ensure they are not using sealed or expunged records?
Follow best practices like working with reputable screening firms, cross-checking online records, documenting procedures, and only inquiring about criminal history at the appropriate time. Updates on law changes are also critical.
- What are the potential legal repercussions for employers using sealed records?
Repercussions can range from individual discrimination lawsuits to class action lawsuits to enforcement actions by agencies like the EEOC. There may be substantial financial penalties along with damage to the company’s reputation.
Expungement laws offer individuals a second chance. They let people seal old, minor crime records. But these laws also create new things for employers to think about. When conducting background checks on new hires, employers must be aware of the expungement rules specific to each state. Certain old records may now be sealed and remain undisclosed in background checks.
To do good background checks, human resources teams need to stay up to date on changing expungement laws. They need to do careful, legal checks. And focus on convictions that matter for the job. These laws aim to help both people and employers move past old mistakes. By working together, we can foster an economy that provides job opportunities to individuals with the right skills.
Daniel Martin has hands-on experience in digital marketing since 2007. He has been building teams and coaching others to foster innovation and solve real-time problems. Dan also enjoys photography and traveling.