Complying With Indiana's New Background Check Law

Employers' use of background checks has been a hot topic after the Equal Employment Opportunity Commission's (EEOC) recent guidance regarding the use of arrest and conviction records in determining an individual's fitness for employment. Indiana is no exception, and in the latest legislative session, the General Assembly imposed new limits on the information employers may receive and request regarding employees' criminal histories and specifically allows individuals not to disclose certain parts of their criminal histories on employment applications.

Nondisclosure of Certain Infractions

One aspect of Indiana's new background check law applies specifically to "infractions," which typically include traffic citations and other very minor violations that do not subject a person to a criminal conviction or are not punishable with jail time. Effective July 1, 2012, if a person who committed an infraction has satisfied the judgment and five years has passed since the satisfaction of the judgment, the clerk of the court cannot disclose information related to the infraction to a noncriminal justice organization or an individual. 

Additionally, if an individual is alleged to have committed an infraction but (1) is not prosecuted or if the action against the person is dismissed, (2) is found not to have committed the infraction, or (3) is found to have committed the infraction and the adjudication is later vacated, the clerk of the court cannot disclose any information related to the infraction to a noncriminal justice organization or an individual.

New Limits on Criminal History Providers Impact Employers

Beginning on July 1, 2013, Indiana's new background check law will limit the information criminal history providers may provide to employers. Criminal history providers will not provide information related to the following:

• An infraction, arrest or charge that did not result in a conviction;
• An expunged record;
• A record that has been restricted by a court or rules of a court;
• A record indicating a Class D felony conviction if the conviction was entered as a Class A misdemeanor conviction or was converted to a Class A misdemeanor; and
• Any record that the criminal history provider knows is inaccurate.

These new exclusions will limit the information employers will receive from their criminal history providers and, particularly, will even limit information about certain felony convictions.  Indiana judges may convert a Class D felony conviction to a Class A misdemeanor upon an individual's petition under certain circumstances, which means that employers may not know that an applicant or employee was actually convicted of a Class D felony (although information regarding the Class A misdemeanor should still be available). Examples of Class D felonies could include theft, assault, operating a vehicle while intoxicated and dealing or possessing marijuana. However, a Class D felony will not be converted to a Class A misdemeanor if, among other things, the individual is a sex or violent offender or was convicted of a Class D felony that resulted in bodily injury to another person.

Individuals Do Not Have to Disclose Information Regarding Restricted Records

Another significant impact of Indiana's new background check law is the impact of the newly-restricted records described above. If the record is restricted (i.e., the clerk of the court may not disclose it), then the individual may legally state on an employment application or any other document that the individual has not been arrested for or convicted of the felony or misdemeanor documented in the restricted records.

Additionally, employers cannot avoid the impact of the law by asking employees directly about their entire criminal history, because the law prohibits employers from asking any employee or applicant whether the individual's criminal records have been sealed or restricted. Any employer that violated this prohibition commits a Class B infraction.