Effective July 1, 2013, Indiana will permit the expungement of certain criminal records and prohibit employer discrimination based on the expungement of any current or prospective employee’s conviction or arrest record.  This legislation provides people who have been charged with or convicted of certain offenses the opportunity to petition the court for expungement of those crimes.  In an application for employment, the prospective employer may ask about a felony criminal record only in terms that exclude the expunged convictions.  For example, an employer may ask, “Have you been convicted of a felony that has not been expunged by a court?”   

The new law allows people who have committed crimes in the past, but have recognized the error of their ways, to receive a clean slate.  Persons who have been charged with or convicted of a misdemeanor in Indiana may petition the court for expungement of those records after five years following the conviction, and the court must expunge the crime so long as: the petitioner has no charges pending against him/her, has not been convicted of a crime during the five-year period since the conviction, does not have a driver’s license suspension existing or pending, and has successfully completed all parts of the criminal sentence.  The same law provides that persons convicted of Class D felonies may follow the same procedure for expungement of those felonies after eight years following the conviction, and the court must expunge all criminal records of that conviction so long as the person has met the same conditions listed above.  The law does not provide for expungement of certain violent and sexual crimes.

A violation of the non-discrimination provision is a Class C infraction, and the person may be held in contempt of court and subject to an injunction.           

Before July 1, 2013, Indiana employers should review their application and interview procedures to ensure compliance with the new legislation. If you have any questions about these issues, be sure to contact your employment counsel at Smith, Gambrell & Russell, LLP.