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Feb 8, 2023

In a couple of months time, any ex-offender living in Michigan with a ten year conviction-free record and a seven year clean slate for certain misdemeanors will be able to have the details of their former crimes automatically sealed.

Michigan’s upcoming legislation, which effectively erases people’s criminal past, is just one of many states that will this year be implementing so-called ‘clean slate’ or ‘ban the box’ legislation. Connecticut and California will both see similar legislation become live in July this year, while Colorado follows suit next year. And these are literally to name but a few.

Supporters of the legislation argue the recruitment landscape will finally be on a level playing field, with employer-held discrimination towards former felons now unable to happen. Those, they claim, who have previously committed crimes, will finally get the chance they’ve been waiting for to start afresh. Rehabilitation groups in particular argue too many people are being held back because of low-level crime, or for crimes committed when they were very young, or the result of simply being in with the ‘wrong crowd’.

From an HR/talent acquisition point of view, advocates argue clean slate legislation also has the potential to open up a big pool of untapped talent.

Excluding individuals with conviction histories from the workforce costs the US economy an estimated $87 billion annually in lost GDP. In New York alone, 2.3 million people have a criminal record, with researchers at the Brennan Center for Justice finding that formerly incarcerated Americans typically see their subsequent earnings reduced by an average of 52%. This compares to studies that have proved that if criminal records are wiped clean, former criminals were 11% more likely to have a job and were earning 25% more.

But with more employers likely to be impacted by this legislation, are there issues they may need to pre-empt?

TLNT sat down with Angela Preston, senior VP and counsel for corporate ethics and compliance at background screening provider, Sterling to find out:

Q: For those who haven’t heard about it, can you broadly explain what clean slate laws comprise?

A: “Clean slate laws are a model aimed at providing relief to those with criminal records – enabling their former criminal history to either be expunged or sealed. The goal is to remove barriers to employment. As we all know there’s been a general trend for simple justice, and this has been thrown into greater light by the social justice movement. We started seeing laws being passed in 2019, but lots are either about to go live, or are in the process of being debated now. Between 2019-22, some 28 states enacted 179 bills all around the area of dissolving criminal records. There are exceptions – for example those applying for work in regulated industries, or in law enforcement – but the principle being upheld is that people should be allowed to turn around their lives, and not be discriminated against.”

Q: Is all the legislation the same?

A: “No, it’s not, and this is something employers need to be aware of. Some states are allowing for records to be automatically expunged, while others require job seekers to apply to have their records sealed. The sorts of offences being covered by legislation are mostly misdemeanors. Felonies won’t be erased.”

Q: Isn’t it already technically discriminatory to decline job offers based on previous criminal history?

A: “The US Equal Employment Opportunity Commission already has guidelines around the use of criminal records in background checking. They require that employers do an individualized assessment, and that they need to take into account the responsibilities that someone applying for will hold. This includes whether a previous crime bears any relation to that, or how long ago the crime was. Employers can still decide to reject someone on the basis of their previous criminal history if they have concerns about public safety, or on the basis of the specific requirements that the job being advertised has. If an employer has done things correctly and can defend their position – based on the responsibilities of the job – they can still decline a job offer based on someone’s previous criminal history. Where this new legislation takes things up a notch is that is now allows for automatic criminal record relief.”

Q: Are employers now worried they could unknowingly be recruiting people who may pose a risk to their other staff and/or organization?

A: “It’s an issue that’s certainly been mentioned, and because there’s no federal standard, states are doing things differently. Some states will allow limited information to be accessed by employers; others will allow people to seal their records. Employers do have a duty to also provide a safe workplace, so employers will certainly have to assess what standards of screening they do. This would help them defend any claim potentially brought against them. I think the fact that it’s only low-level crimes being erased should be a comfort to employers.”

Q: What about employers doing their own checks online or on social media? What if they see evidence of someone’s criminal past even if their official file is erased?

A: “A proper background check should only rely on courthouse, and public records as a source of truth. HR can certainly ‘go rogue’ and perform their own search on someone, and it may bring up a host of stuff. But even if employers do want to investigate via social media, they are advised to only use proper background search companies, who are required to go through screening processes that protect people.”

Q: What’s your advice to HRDs moving forward?

A: “We’ll see a host of these new laws coming online or being passed this year. These new laws are literally going through on an almost weekly basis, so it’s essential employers keep up to date, and understand what’s happening in their state or city. Employers will need to keep up to date with this and review their screening standards. They should also consult any legal counsel if they foresee any problems arising.”

Criminal histories in numbers:

  • An estimated 70 million to 100 million Americans (or roughly one in three US adults), have an incarceration, conviction, or arrest record.
  • According to a Center for American Progress analysis, nearly half of US children now have at least one parent with such a record.
  • Households with a currently or previously incarcerated family member have about 50% less wealth than households not affected by incarceration, on average.
  • Households with criminal legal system interactions face more obstacles to saving and end up deeper in debt. For example, 21.5% of households with a currently or previously incarcerated family member had legal debt in 2019, compared with only 2.1% of households without an incarcerated family member.