Indiana Second Chance Law

By: Denise C. Davis, J.D.

The Indiana legislature recently changed portions of the Indiana Criminal Code which will impact employers.  These changes impose new limits on the information that employers may request or receive concerning an employee’s criminal history and the manner in which an employer may utilize certain information.  Known as a “second chance” law, House Enrolled Act 1482 took effect July 1, 2013.

The new law allows a judge to seal the records of an individual who was arrested but not prosecuted for a crime.  In addition, people who have been convicted of a misdemeanor crime may petition the court for expungement five years after the conviction.  The new law also affects felony crimes.

The new law allows an individual who has been convicted of a class D felony to petition the court for expungement eight years after the date of conviction.  Criminals who have been convicted of felonies greater than class D felonies may petition the court for expungement eight to ten years after the completion of the individual’s sentence, including any conditions of supervised release.  If the offender successfully petitions the court to expunge or seal his or her record, then the criminal record will appear as if the criminal act never occurred.  Importantly, this new law does not apply to certain crimes such as violent offenses or sex offenses.

These changes will affect employers since employers will no longer have access to an individual’s entire criminal history.  More significantly, the law will allow an applicant, who has a restricted record, to legally state on an application that he or she has not been convicted of the crime documented in the restricted record.  Employers will only be able to question applicants in terms that exclude expunged convictions or arrests, such as: “Have you ever been convicted of a crime that has not been expunged by a court?”  This change may require employers to restate application questions relating to criminal history.

After July 1, 2013, not only will employers be unable to reject an applicant because of a conviction or arrest record which has been expunged or sealed, but an employer may face discrimination charges if he or she discriminates against an applicant based on a criminal record which has been expunged or sealed.  In the event that an employer refuses to hire, suspends, expels, or otherwise discriminates against an individual because of a criminal record which has been expunged or sealed, the employer may face a class C infraction. While this law may offer offenders a greater chance to find employment, it may also adversely affect employers in certain circumstances.

If you have any questions about this Article, contact a member of Yoder Ainlay Ulmer & Buckingham’s Employment Law Practice Group at (574)-533-1171.

Disclaimer: These materials are for informational purposes only and should not be construed as legal advice on any specific facts or circumstances. We recommend you consult a lawyer if you want professional assurance your interpretation of these materials is appropriate to your particular situation.

©  Yoder Ainlay Ulmer & Buckingham, LLP [August 2013]