Author: David B. Weisenfeld, XpertHR Legal Editor

Effective July 1, 2013, a new Indiana law will give job applicants with criminal histories a chance to have their criminal records expunged (eliminated completely) after a period of time provided their prior convictions do not involve sexual or violent crimes.

The law also makes it illegal for an employer to refuse to hire or to suspend or otherwise discriminate against any applicant whose conviction or arrest record has been expunged. As a result, Indiana employers may ask criminal history questions only in terms that exclude expunged convictions or arrests.

Under the new statute, individuals convicted of a misdemeanor, or a class D felony that has been reduced to a misdemeanor, may have their records expunged after five years. Individuals convicted of more serious felonies may apply to have their records expunged after eight or 10 years depending on the nature of the crime. The Indiana law does not apply to murder or manslaughter convictions.

Indianapolis Employment Attorney Breaks Down the Law

According to Joe Pettygrove, an attorney who represents employers at Faegre Baker Daniels in Indianapolis, the newly-revised law represents the collision of two distinct public policies:

"On the one hand, those who have fully paid their debt to society following comparatively less serious crimes deserve help in removing unnecessary barriers to employment," said Pettygrove. "On the other hand, employers generally know their business best and ought to be able to screen their workforce accordingly based on their own assessment of risks and benefits. Indiana has, in effect, taken that choice away from employers."

However, Pettygrove acknowledges that at least in some cases, the state has also given employers a defense to certain negligence actions. For instance, any employer sued for negligence may introduce an expungement order as evidence of its efforts in hiring or retaining the person to whom the order was issued.

Regarding compliance, Pettygrove added that "All Indiana employers ought to review their background check processes, including their applications, to ensure they are set to comply with the new law - and take advantage of that defense - by the effective date."