Changes coming to Indiana’s background check law

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 rozlyn.fulgoni-britton@faegrebd.com or 317-237-8214.

About Indiana Employment Law Letter:
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.
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2 COMMENTS

1 Indy
13:59:28, 26/10/13

Rozyln,

Is a county courthouse clerk considered a “criminal history provider?”

In September 2013, I questioned an Indiana county clerk on how she provides criminal background check information on individuals to employers or vendors who do criminal background checks for employers. She responded that when they call she simply provides them with the link (below) to the public access Indiana Odyssey Case Management System for Courts and Clerks for them to search for any criminal background history on a candidate for employment.

http://mycase.in.gov/default.aspx

As you know, this database is wide open to the public, and provides criminal history on an individual even if, for example, they were charged with a misdemeanor which was Dismissed/did not result in a conviction.

Can an employer simply bypass a “criminal history provider” and use this system themselves, therefore, bypassing this new law?

Thank you.

2 Rozlyn Fulgoni-Britton
09:40:43, 31/10/13

Thank you for your question. Indiana law defines “criminal history provider” as “a person or an organization that assembles criminal history reports and either uses the report or provides the report to a person or an organization other than a criminal justice agency or law enforcement agency.” A “criminal history report” is defined as “criminal history information that has been compiled for the purposes of evaluating a particular person’s (1) character; or (2) eligibility for: (A) employment; (B) housing; or (C) participation in any activity or transaction. Ind. Code 24-4-18-2 & 24-4-18-3.

Indiana’s law in this area has been changing pretty rapidly over the last few years, and I’m unaware of any guidance that’s been issued so far that would definitively answer your questions. If you’d like to look into these questions further on behalf of your organization, feel free to contact me and we can discuss how to go about that. If you’re looking more for guidance as to your personal situation, I’d suggest calling your local bar association’s referral line or researching the public interest organizations that are offering assistance to individuals looking to restrict access to criminal background records.

Thanks for reading the article!

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