The Resource Newsletter for Home and Hospice Care December 2013 & Home Care The Law LEGAL HOT TOPIC: Expunged Criminal Records - What Do They Mean for Your Agency or Hospice? By John C. Gilliland II, The Gilliland Law Firm PC This issue s legal hot topic focuses on the new Indiana law that governs expungement of certain arrests and convictions. Learn more about how this affects your agency and your hiring practices. Published by Indiana Association for Home and Hospice Care, Inc. 6320-G Rucker Road Indianapolis, IN 46220 www.iahhc.org (317) 775-6675
LEGAL HOT TOPIC/John C. Gilliland II Expunged Criminal Records - What Do They Mean for Your Agency or Hospice? A new Indiana law can affect your hiring process - know the rules and how they impact your agency. On July 1, 2013, a new Indiana law became effective to govern expungement of certain arrests and convictions. IC 35-38-9 affects home care agencies and hospices in a number of ways. give a brief overview of the expungement aspects of the new law. It will then address that law s impact for you as an employer and answer some of your common questions concerning it. What is Expungement? Expungement refers to the process of sealing arrest and conviction records of an individual. The records are not destroyed, but access is greatly restricted and for most purposes, it is as if the arrest or conviction did not occur. When records are expunged, they should not be reported on a criminal history check, but courts, prosecutors and police will still have access to them. it gives the rehabilitated individual a second chance. Page 2
Expungement of Arrests and Convictions Arrests records. It permits sealing of records concerning an individual s arrest if: (a) the arrest did not result in a conviction or juvenile adjudication; or (b) the arrest resulted in a conviction or juvenile adjudication but was vacated on appeal. When arrest records are sealed, only a criminal justice agency may access the records without a court order. Convictions When records are expunged, they should not be reported on a criminal history check, but courts, prosecutors and police will still have access to them. Under the new law, the relief available to the convicted individual depends on the nature of the conviction. Individuals Convicted of a Misdemeanor, Including a Class D Felony Reduced to a Misdemeanor Not earlier than 5 years after the date of the conviction, an individual who has been convicted of a misdemeanor, including a Class D felony reduced to a misdemeanor, may petition the sentencing treatment services to the individual under a court order. The petition prosecuting attorney consents. convincing evidence that: (1) the 5 year or earlier period has elapsed; (2) no charges are pending against the individual; (3) the individual does not have an existing or pending driver s license suspension; (4) the individual has successfully completed the individual s the individual as part of the sentence; and, Page 3
(5) the individual has not been convicted of a crime within the previous 5 years. Individuals Convicted of a Minor Class D Felony or Certain Less Serious Felonies The process and criteria for expungement of a minor Class D felony or certain less serious felonies is similar to that described above for with the sentencing court until 8 years have passed since the date of the conviction. Once again, the prosecuting attorney may consent to a shorter period than 8 years. misdemeanors exist, but the period is 8 years rather than 5 years. Individuals convicted of Certain Serious Felonies law, including violent or sexual felonies, the process is similar to that described above for misdemeanors except the For an individual convicted of certain in the law, including violent or sexual felonies, the process is similar to that described for misdemeanors except the petition for expungement sentencing court until 10 years have passed since the date of the conviction. with the sentencing court until 10 years have passed since the date of the conviction. Again, the prosecuting attorney may consent to a shorter period than 10 years. The expungement may be granted if the misdemeanors exist, but the period is 10 years rather than 5 years. Plus, the prosecutor must consent in writing to the expungement. Provisions Important for Employers Although much of the new law deals with the process and criteria that must be met for expungement to occur, one section of the law is very important for employers, including provisions. Page 4
Nondiscrimination It is now unlawful discrimination for anyone, including your agency/hospice to: (1) suspend; (2) expel; (3) refuse to employ; (4) refuse to admit; (5) refuse to grant or renew a license, necessary to engage in any activity, occupation, or profession; or, (6) otherwise discriminate against; any person because of a conviction or arrest record expunged or sealed under the Indiana law. In any application for employment, a license, or other right or privilege, any question concerning a previous criminal record must be asked only in terms that exclude expunged convictions or arrests. Any person who violates this prohibition commits a Class C infraction Effect of Expungement Except in later criminal proceedings, an individual whose record is expunged shall be treated as if the person had never been convicted of the offense. Applications for Employment In any application for employment, a license, or other right or privilege, any question concerning a previous criminal record must be asked only in terms that exclude expunged convictions or arrests. The new law gives the following example of an acceptable question: Negligent Hiring Defense The new law gives two protections for allegations of negligent hiring because an employer hired an individual with an expunged conviction. First, in any lawsuit alleging negligence or other fault, an order of Page 5
expungement may be introduced as evidence of the employer s due care in the hiring or retention of the person whose conviction was expunged. For example, the expungement may be introduced to show the employer was not aware of a prior conviction. Second, a conviction that has been expunged under the new law is not admissible as evidence in an action for negligent hiring against an employer who relied on the order. In other words, the fact that there had been a conviction cannot even be used as evidence against an employer in a negligent hiring lawsuit. Common Questions Does my agency/hospice meet the requirements to not employ persons with certain criminal convictions when the conviction has been expunged? Yes. If the conviction has been expunged, it is the same as it not existing at all when a criminal history check is performed. An expunged conviction should not appear at all in a criminal history check. A conviction that has been expunged under the new law is not admissible as evidence in an action for negligent hiring against an employer who relied on the order. In other words, the fact that there had been a conviction cannot even be used as evidence against an employer in a negligent hiring lawsuit. But what if it does appear in the criminal history check? You must ignore it. You cannot base a hiring or retention decision on it. We don t ask applicants for employment about expunged convictions. What do we do if the applicant volunteers that she/he has had a conviction expunged? Once again, you must ignore it. You cannot base a hiring or retention decision on it. But, the law still states that we cannot hire individuals with certain convictions. Aren t we violating that law if we follow the new expungement law? In my opinion, you are not. The new law was enacted after the laws prohibiting employment of individuals with certain convictions, and the Page 6
expungement law essentially says an expunged conviction does not exist If you have any doubt what you should do in particular circumstances, you should consult your attorney concerning how to proceed. & Home Care The Law Page 7 John C. Gilliland II is an attorney with The Gilliland Law Firm PC, Indianapolis, Indiana. He can be reached at (317) 704-2400 or author s view and not necessarily those of IAHHC, is for educational and informational purposes only, is not intended encouraged to submit legal topics for future issues to the Indiana Association for Home and Hospice Care, Inc.; 6320-G Rucker Road, Indianapolis, IN 46220. Published by the Indiana Association for Home & Hospice Care, Inc.
Home Care & The Law Published by Indiana Association for Home and Hospice Care, Inc. 6320-G Rucker Road Indianapolis, IN 46220 www.iahhc.org (317) 775-6675 Expunged Criminal Records - What Do They Mean for Your Agency or Hospice? A new Indiana law can affect your hiring process - know the rules and how they impact your agency. Page 8