Excerpted from an HR Morning Blog by Tom D’Agostino

Colorado has joined a growing list of states that have passed what are known as “Clean Slate” laws, lending momentum to a trend that is likely to see additional states follow suit.

Gov. Jared Polis signed Colorado’s Clean Slate Act into law at the end of May. According to the Clean Slate Initiative, Colorado is the seventh state to enact the law. The growing trend began recently, starting with Pennsylvania in 2018.

What is a Clean Slate law?
In most states, individuals have the ability to file a petition to seal or expunge some criminal records, thus greatly enhancing employment opportunities.

But evidence shows only a small fraction of eligible individuals do what is needed to complete the process. For example, one study found that 90% of those eligible to have criminal records expunged didn’t take the necessary steps to do so.

Why is this? In short, the process can be unwieldy and expensive.

Enter Clean Slate laws. In essence, these laws eliminate the need to navigate the cumbersome expungement process by automatically clearing certain criminal records after a prescribed time and the satisfaction of other prerequisites, such as the completion of probation.

How the laws compare
All state Clean Slate laws shield criminal records from public view. The shielded records and the prerequisites vary from state to state.

In Pennsylvania, offenses eligible for Clean Slate include second- and third-degree misdemeanors; summary convictions; and cases in which a charge was brought but no conviction resulted.

In Colorado, records relating to civil infractions will be sealed four years following final disposition. That time period extends to seven years for misdemeanors and to 10 years for felonies.

In Utah, only misdemeanor records are eligible, and the waiting period ranges from 60 days in cases of acquittal to seven years for drug possession and dismissals.

Michigan’s law creates a process to set aside eligible misdemeanors after seven years and certain non-assaultive felonies after 10 years.

Delaware, Connecticut and Oklahoma have also enacted Clean Slate measures, with similar plans gathering steam elsewhere.

A federal measure, introduced by Sen. Robert Casey of Pennsylvania, called for the automatic sealing of conviction records for certain offenses after one year. That measure proceeded no further than a referral to the Committee on Judiciary Action in April of last year.

Benefits of Clean Slate laws
Proponents say Clean Slate laws provide opportunities to those eligible. The Clean Slate Initiative reports that most HR pros believe people with criminal records perform as well or better than those without – and they have a lower turnover rate.

Opponents have suggested these laws may actually incentivize employers to discriminate by encouraging them to make inaccurate assumptions about minorities.

HR Impact
In states with Clean Slate laws, HR professionals must be aware that background checks may not show criminal records that qualify for expungement. Internet searches may reveal the presence of those records, but employers may face lawsuits if they make employment decisions based on expunged records.

It is a dangerous practice for employers to rely on criminal records found online to make hiring decisions. Why? Because the retrieved information may be inaccurate or dated.

Clean Slate laws make it even more important for employers to utilize background check providers who are gathering only accurate and current information that reflects new expungements.

In states with Clean Slate laws, a best practice is to include a notice on job applications that specifically instructs applicants not to include information about a criminal record that has been expunged pursuant to a Clean Slate law. In jurisdictions with “ban-the-box” laws, employers cannot ask about an applicant’s criminal history.

Even in jurisdictions without such laws, asking about criminal history early in the interview process can be risky. The EEOC has taken the position that questions about an applicant’s criminal past can lead to liability under Title VII.

Clean slate laws are sure to continue gathering momentum, and employers should be prepared to make needed adjustments to current hiring practices.

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