by Rozlyn Fulgoni-Britton
Provisions of Indiana’s new background check law, which limits the information criminal history providers may give to employers, go into effect July 1.
Under the law, criminal history providers won’t be able to provide information related to the following:
- An infraction, arrest, or charge that didn’t result in a conviction;
- An expunged record;
- A record that has been restricted by a court or rules of a court;
- A record indicating a Class D felony conviction if the conviction was entered as or converted to a Class A misdemeanor conviction; and
- Any record the criminal history provider knows is inaccurate.
In addition to the limits on information from criminal history providers, the law restricts the information you may obtain about certain felony convictions. Indiana judges may convert a Class D felony conviction to a Class A misdemeanor conviction under certain circumstances when an individual petitions a court to convert the conviction. Therefore, you may not know that an applicant or employee was convicted of a Class D felony, although information about the Class A misdemeanor conviction still should be available.
Examples of Class D felonies include theft, operating a vehicle while intoxicated, and dealing or possessing marijuana. A Class D felony won’t be converted to a Class A misdemeanor if, among other things, the individual is a sex or violent offender or was convicted of a Class D felony that resulted in bodily injury to another person.
The new background check law also means individuals don’t have to disclose information about restricted records. If an individual’s record is restricted, he may legally state on an employment application or any other document that he hasn’t been arrested for or convicted of the felony or misdemeanor documented in the restricted record.
Also, employers can’t avoid the impact of the law by asking employees directly about their entire criminal history. That’s because the law prohibits you from asking an employee or applicant whether his criminal records have been sealed or restricted. Employers that violate the prohibition commit a Class B infraction.
Indiana’s new background check law was covered in more detail in the October 2012 issue of Indiana Employment Law Letter.
Rozlyn Fulgoni-Britton is an associate with Faegre Baker Daniels in Indianapolis. She is a contributor to Indiana Employment Law Letter and can be reached at firstname.lastname@example.org or 317-237-8214.
Excerpted from Indiana Employment Law Letter, written by attorneys at the law firm of Faegre Baker & Daniels. INDIANA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems, but rather to provide information about current developments in Indiana employment law. Questions about individual problems should be addressed to the employment law attorney of your choice. Contact the attorneys at Baker & Daniels.