Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
How and when employers can request and use a person’s criminal record information during the hiring process and for other employment purposes has become a hot topic over the last few years at the federal, state and local level. In the last 18 months, various states and cities have enacted legislation regulating when an employer can seek criminal record information in the hiring process, what information can be sought and how the information can be used.1 Moreover, so-called “ban-the-box” legislation has been sent to the Governors of Illinois and New Jersey, and similar legislation is pending in the District of Columbia.
Effective July 6, 2014, Alabama joins the growing list of states regulating employer use of criminal record information for employment purposes. Covered employers should become familiar with the terms of the new law and consider the action items below.
The New Alabama Law
Under the new law, job applicants with certain expunged criminal arrests may legally answer “no” in response to employment application questions concerning arrests. The law sets forth the criteria for expungement regarding charges for misdemeanor criminal offenses, certain violations and non-violent felony offenses. Violent crimes, including, but not limited to, capital murder, manslaughter, robbery and domestic violence 1 and 2, are not currently eligible for consideration for expungement.
Individuals who have been charged with misdemeanor criminal offenses, violations, traffic violations, or municipal ordinance violations may be eligible for expungement if:
- the charge was dismissed with prejudice;
- the charge has been “no-billed” by a grand jury (dismissed for failure to provide sufficient evidence of a crime);
- the person was found not guilty of the charge; or
- the charge was dismissed without prejudice more than two years ago, has not been refiled, and the person has not been convicted of any other felony or misdemeanor, violation, or non-minor traffic violation, during the previous two years.
Individuals who have been charged with non-violent felony offenses may be eligible for expungement if:
- the charge was dismissed with prejudice;
- the charge has been no-billed by a grand jury;
- the person was found not guilty;
- the charge was dismissed after successful completion of a drug court program, mental health court program, diversion program, veteran’s court, or any other court-approved deferred prosecution program after one year from successful completion; or
- the charge was dismissed without prejudice more than five years ago, the charges have not been refiled and the defendant has not been convicted of any other felony or misdemeanor crime, violation, or non-minor traffic violation, during the previous 5 years.
An individual whose charge qualifies for expungement must then request expungement from the court. If the court grants the expungement, the legal effect is such that “the proceedings regarding the charge shall be deemed never to have occurred.” The court and related agencies are to respond that no records exist on an expunged matter in response to any inquiry, and the individual does not have to disclose facts related to the expunged charge on a job or credit application. However, there are exceptions to the new law that will still require individuals to disclose expunged charges, including disclosure to any government regulatory or licensing agency, utility, bank or financial institution, and in any application for a position in law enforcement.
Action Steps for Employers
The plaintiffs’ bar, the Equal Employment Opportunity Commission and state and local fair employment agencies have increased their focus on employer use of criminal record information for employment purposes and the methods by which employers obtain that information. Employers must stay abreast of changes in these ex-offender protection laws and make sure that they adhere to any restrictions being mandated. Employers also must be mindful of separate state laws restricting the use of credit information and compliance with federal and state fair credit reporting laws, including the Fair Credit Reporting Act. Now more than ever, employers should consider a privileged review of their hiring and background screening practices, including their employment applications, job advertisements and announcements, background screening consent forms, and training and guidelines applicable to those responsible for conducting job interviews and making or influencing hiring or other personnel decisions.
1See Rod Fliegel and Jennifer Mora, “Ban-the-Box” and Beyond: Employers That Do Business In or Contract with the City of San Francisco Should Review Sweeping Restrictions Regarding Inquiries Into, and the Use of, Criminal Records, Littler ASAP (February 14, 2014); Rod M. Fliegel, Pam Salgado, Dan Thieme and Jennifer Mora, Seattle Adopts Ordinance Limiting Inquiries Into and Use of Criminal Records for Employment Purposes, Littler ASAP (June 20, 2013); Dale Deitchler, Rod Fliegel, Susan Fitzke and Jennifer Mora, Minnesota Enacts "Ban the Box Law" Prohibiting Employment Application Criminal History Checkmark Boxes and Restricting Criminal Record Inquiries Until After Interviews or Conditional Job Offers, Littler ASAP (May 17, 2013); Jennifer Mora, Rod Fliegel and Sherry Travers, The Flurry of New Employment Laws Regulating the Use of Criminal Records Continues with Expanded Restrictions in Indiana, North Carolina, Texas, and Buffalo, New York, Littler ASAP (June 7, 2013).