COULD SEALING COURT RECORDS BECOME A TREND?
Previously I wrote about a new law in Indiana that, if upheld, could seal the court records of convicted felons of all but violent and sexual offenders. While it seems unlikely, it’s possible that more state legislatures could follow suit. In the meantime, for states that do permit court records to be sealed, what are prospective employers supposed to do to avoid hiring individuals who have been convicted of crimes like theft, arson, fraud, and other offenses that would otherwise disqualify a job applicant from being hired?
As noted before, the mere fact that a court record has been sealed should, in itself, be a major red flag to employers. The employer can assume that a job applicant who has requested his or her court record be sealed was convicted of something serious enough that the job applicant doesn’t what anybody to know about it! The net effect, it seems to me, is that more job seekers will be dropped from further consideration than would otherwise, simply because the prospective employer doesn’t know what they did! The offense committed, if revealed, might not matter to the prospective employer. But for it not to matter, it certainly makes sense that the employer should know what it is!
In Indiana, at least, this new legislation is being called the “second chance” law – and it’s easy to understand why it was introduced – to help insure that otherwise well-qualified people are not automatically disqualified from further consideration because they wrote “yes” on the job application in response to the question: “Have you ever been convicted of anything other than a minor traffic offense?” Indiana’s new law actually allows job seekers to lie on a job application if they’ve requested that their court records be sealed!
Attempts are currently underway in Indiana to amend the HE Act No. 1033 before it takes effect next July. It those attempts fail, however, it seems abundantly clear that there will be legal action challenging the constitutionality of both pieces of legislation.
In the meantime, checking references will continue to be the primary alternative course of action for prospective employers. And here’s a special tip to keep in mind. In numerous instances, employees caught doing something for which they could be arrested are often simply given the choice of resigning or being fired. Obviously, most candidates caught with their hands in the proverbial cookie jar will simply resign – avoiding the chance of being arrested or the stigma of being fired! That’s why questions like, “Would you hire so-and-so again?” and “Could so-and-so have stayed with your company if he hadn’t resigned?” become so very important – especially in states where, at least for the time being, convictions for nonviolent crimes can be sealed from the public.