NEW LAW IN INDIANA COULD SEAL COURT RECORDS
A new law passed last year by the Indiana General Assembly could make reference checking even more important to employers than it already is. House Enrolled Act No. 1211 allows people convicted of a nonviolent misdemeanor or low level felony to request that the record of their conviction be sealed from the public if they have had no further convictions for at least the last eight years. Passed in 2011, this law does not apply to sex or violent offenders, but it leaves the door wide open for those convicted of crimes such as theft, fraud, burglary, and a wide array of other non-violent crimes to request that their court records be sealed. In effect, it allows a convicted felon with a sealed record to lie on a job application about ever having been convicted of anything other than a minor traffic offense.
A supplemental House Enrolled Act No. 1033 makes it a class B Infraction for an employer to even ask a prospective employee if his court record has been sealed! The Act does not take effect, however, until July 1, 2013.
The intent of both pieces of legislation is clearly designed to give people seeking employment a “second chance” by sealing their court records, or so the authors of this legislation intended. But it seems clear that both laws will likely be declared unconstitutional under the First Amendment and, just as importantly, under the principle that everyone is entitled to a speedy and public trial. It makes no sense at all to declare that some court records are public while others are not! We either have public trials in this country – including Indiana – or we don’t. No court will let stand a law that says some court records may be sealed while others may not.
If, however, the law is left unchallenged, job performance based reference checking will become even more important to employers. The question, “Can you tell me why so-and-so left the company?” takes on far greater significance if Indiana’s limited access law is allowed to stand.
There’s also another angle on this law that could prove to make it useless. Court checks can still be done if the law stands; but, if a request for a court check results in a response that the record has been sealed, that would seem to me to be a rather large “red flag” for most employers, unless the presumption is that nobody does court checks! The logical conclusion is that, if the candidate has requested his court records be sealed, there must be some negative reason for it, which should make the prospective employer suspicious about what it might contain. Again, getting at the truth through careful reference checking will become significantly more important if a candidate’s court record has been sealed.
In all likelihood, however, the acts cited here will, at some point, be declared unconstitutional. Until that time comes, however, reference checking will be the best way to uncover the truth.