New Indiana Law Regarding Criminal Background Checks

Author: Beth P. Zoller, XpertHR Legal Editor

As of July 1, 2012, Indiana employers are now prohibited from conducting certain preemployment inquiries and are restricted in the types of information they can obtain from consumer reporting agencies and Indiana state courts with respect to background checks and criminal history, respectively. +2012 Bill Tracking IN H.B. 1033; +2012 Bill Text IN H.B. 1033.

Under the new law, individuals who were charged with crimes, but not ultimately convicted due to dismissal, acquittal or a vacated conviction or who were convicted of a misdemeanor and most Class D felony convictions that are old enough to qualify and did not result in injury to a person, are permitted to petition a court to restrict access to that individual's criminal record. If the court does so, the individual may legally represent in a preemployment inquiry or application that the individual has not been arrested or convicted of a felony or misdemeanor. Further, under the new statute, covered employers will be prohibited from asking a job applicant about sealed and restricted criminal records.

The new law also restricts information that employers and consumer reporting agencies can obtain from Indiana state court clerks with respect to criminal history and background checks. The courts are now prohibited from disclosing information in cases in which an individual was:

• Not prosecuted or if the action was dismissed;
• Adjudged not to have committed the infraction;
• Adjudged to have committed the infraction and the adjudication is subsequently vacated; or
• Convicted of the infraction and satisfied any judgment attendant to the infraction conviction more than five years ago.

As of July 1, 2013, the law will also restrict information that criminal history providers or those who assemble criminal history reports can provide in a background check to an employer. Employers who violate this new law by seeking access and information regarding sealed and restricted criminal records are subject to fines. The new law does not specifically contain a private right of action for employees against employers who violate this law.

As a result, employers should be especially cautious when conducting preemployment inquiries, background checks and screenings that they do not run afoul of the requirements of this new law and request information regarding sealed criminal records. Employers should make sure that all hiring managers and those who conduct interviews are aware of this new law and proceed carefully during the hiring process.

Additional Resources

Employee Management > EEO - Discrimination: Indiana

Employee Management > Employee Privacy (Federal)

Recruiting and Hiring > Preemployment Screening and Testing: Indiana