HR professionals are well aware that keeping up with employment law must be a top priority.
One significant trend in the past few years is clean slate laws. These laws aim to provide individuals with certain criminal records a fresh start by limiting the visibility of their past offenses to potential employers. For HR departments, understanding and adapting current policies to these laws are essential to ensure compliance and fairness in hiring practices.
What Does “Clean Slate” Mean?
Clean slate laws are legislative measures designed to help individuals with certain criminal records move forward with their lives by restricting the disclosure of past convictions to potential employers after a certain period. These laws typically involve expunging or sealing criminal records for qualifying offenses.
According to the National Conference of State Legislatures, 77 million Americans have a criminal record. This number includes arrests, criminal charges, and convictions.
The goal of clean slate laws is to reduce the barriers to employment that individuals with past convictions face, allowing them to secure meaningful work opportunities and successfully reintegrate into society.
Key Components of Clean Slate Laws
While clean slate law specifics vary by jurisdiction, they commonly include these key components:
- Automatic expungement or sealing. In some cases, certain low-level offenses (such as misdemeanors) may be automatically expunged or sealed from a person’s criminal record after a predetermined period of time without reoffending.
- Petition-based expungement. Individuals may have the opportunity to petition the court for the expungement or sealing of their criminal records, typically after demonstrating rehabilitation or meeting specific eligibility criteria.
- Limited disclosure. Once a record is expunged or sealed under clean slate laws, employers may be prohibited from considering those past offenses during the hiring process or accessing them through background checks.
- Non-discrimination. Clean slate laws often include provisions that prohibit employers from discriminating against applicants or employees based solely on their expunged or sealed criminal records.
Current States with Clean Slate Laws
A growing number of states have recognized the need for fairer and more inclusive employment practices and proactively enacted clean slate laws. According to the Clean Slate Initiative, 12 states have passed clean slate regulations since 2018: Pennsylvania, Utah, New Jersey, Michigan, Connecticut, Delaware, Virginia, Oklahoma, Colorado, California, Minnesota, and New York.
Recently Passed and Upcoming Clean Slate Laws
In response to evolving attitudes toward criminal justice reform and fair employment opportunities, legislatures have been increasingly active in passing clean slate laws. These recent legislative developments signal a concerted effort to address the barriers faced by individuals with criminal records seeking employment.
Connecticut: January 1, 2024
Connecticut’s Clean Slate Law automatically erases:
- Any classified or unclassified misdemeanor with a 7-year waiting period from the person’s most recent conviction.
- Class D, E, or unclassified felonies or any conviction while operating under the influence with a 10-year waiting period from the person’s most recent conviction.
This law is expected to wipe 81,000 Connecticut residents’ criminal records clean.
New York: November 16, 2024
Under New York’s Clean Slate Act:
- The office of court administration will seal eligible convictions entered before the effective date within 3 years.
- Convictions NOT eligible for sealing are sex crimes, sexually violent offenses, and Class A felonies (except for drug convictions).
- The law does NOT apply to federal crimes or convictions in other states.
- The waiting period is 3 years for a misdemeanor and 8 years for a non-A felony.
Adjusting Background Screening Policies to Comply with Clean Slate Laws
Clean slate laws make it essential for HR departments to review and adjust their background screening policies to ensure compliance while maintaining effective risk management practices. Some steps HR professionals should take are:
- Staying informed
Keep abreast of the clean slate laws applicable where your organization operates and maintains employees. Consult legal counsel or industry experts for guidance on how to interpret and implement them.
- Partnering with a reputable background screener
Experienced background screening vendors understand the intricacies of clean slate laws, including the specific eligibility criteria for expungement or sealing of criminal records in different jurisdictions. They can update their systems and procedures to align with these laws, ensuring that expunged or sealed offenses are not improperly disclosed during background checks. Additionally, vendors can guide employers on how to manage the complexities of clean slate laws and make informed hiring decisions while remaining compliant with legal requirements.
- Revising screening criteria
Review and update screening criteria to account for the limitations clean slate laws impose. Adjust policies to exclude consideration of expunged or sealed offenses that are no longer relevant to job performance or pose minimal risk.
- Educating hiring managers
Train hiring managers and relevant personnel in the implications of clean slate laws and the importance of fair and equitable hiring practices. Emphasize the legal obligations and ethical considerations surrounding the use of criminal background information in hiring decisions.
- Enhancing compliance procedures
Implement robust compliance procedures to ensure adherence to clean slate laws and other relevant regulations governing background screening and employment practices. Document all steps taken to demonstrate good faith efforts towards compliance.
- Promoting diversity and inclusion
Embrace the opportunity clean slate laws present to promote diversity and inclusion in the workforce. Recognize the potential talent pool represented by individuals with past convictions who have demonstrated rehabilitation and a commitment to positive change.
HR departments must familiarize themselves with clean slate laws and make necessary adjustments to their organization’s background screening policies. This effort can promote fair and compliant hiring practices while providing individuals with past convictions the opportunity for a fresh start.
