Criminal justice reforms are increasingly having an impact on employers’ decision-making, as evidenced by a background check delay after Michigan passed its clean-slate law. Kelly Uebel, general counsel at Asurint, explores the growing trend toward clean-slate laws and what it means for companies looking to hire.
Editor’s note: The author of this Q&A, Kelly Uebel, is general counsel at Asurint, a background check and screening company.
The general concept of a clean-slate law is to allow for individuals to have their criminal history sealed or erased under a certain set of parameters. While the concept is relatively new, we have already seen the impact this type of law can have on the background screening process.
For example, Michigan’s clean-slate law took effect in April 2023. Courts in counties across the state struggled immensely to process the record sealings, what Michigan refers to as a record being “set aside.” In addition to significant delays, this led to courts implementing a variety of roadblocks, including limiting the look-back period for criminal record availability, limiting the number of names processed per day and even refusing to respond to criminal record requests.
Employers and candidates had background checks open for far longer than normal, which was frustrating for all involved.
How are clean-slate laws currently impacting employers’ hiring processes, decisions and policies?
Arguably the impact of clean-slate laws is primarily felt by the background screening provider, who must ensure they are properly reporting the current status of the record. Generally, background screening providers do not report expunged or sealed records. Indeed, the Consumer Financial Protection Bureau issued an advisory opinion in January 2024 saying that consumer reporting agencies must have procedures in place to prevent “reporting public record information that has been expunged, sealed, or otherwise legally restricted from public access.”
The two real effects on employers will be: (1) the potential for significant delays or impacts to the background screening process, as was the case in Michigan and (2) the limitation of what criminal record information may be returned.
To illustrate the latter point, employers in California will likely be in for a shock come July when the Golden State’s clean-slate law is implemented. Under California’s new law, misdemeanors are eligible to be automatically sealed one year after the date of judgment and felonies may be automatically sealed four years after completed probation or supervision.
There are some limitations in the bill, including that it does not apply to registered sex offenders or those convicted of violent or serious felonies, but a significant number of criminal records in California may be wiped clean starting in July. Employers will need to revisit their adjudication matrices and hiring policies, as well as evaluate how they will keep their workplaces and consumers safe.
What are the potential benefits and challenges for employers in states with clean-slate laws when considering job applicants with past criminal records?
In theory, the clean-slate law will erase the criminal history of eligible candidates so employers would not receive that information. It does raise a concern as to how employers that span multiple states or jurisdictions will operate given that only a handful of states have approached this topic. For example, a candidate in California who committed a misdemeanor a year ago would potentially have a clean criminal history on a background report, while a candidate in Minnesota with that same misdemeanor would have the information show up on their report. The examples become even more challenging when looking at felonies. Employers will need to evaluate what criminal history really is important for the positions being filled.
Which states currently have clean-slate laws in place? Are any states likely to follow suit soon?
California and Michigan have clean-slate laws in place, with California’s set to be implemented in July. Connecticut is working through its clean-slate law’s implementation, erasing certain cannabis convictions as a start. Colorado’s clean-slate law also goes into effect in July, allowing for certain criminal convictions to be automatically sealed after a period of time, including petty offenses and misdemeanors after seven years and felonies after 10 years.
New York passed its Clean Slate Act in November 2023, which will allow sealing of eligible misdemeanor convictions after three years and eligible felony convictions after eight years following an individual’s release from incarceration. The law takes effect in November, although it may take the New York State Office of Court Administration up to three years to implement the appropriate process to execute.
We’re tracking proposed bills in a number of states, including Missouri and Vermont. As demonstrated, these laws vary widely in terms of when people may have eligible records automatically sealed. As more states take up the issue, which we certainly expect will happen, employers will soon be faced with a complex web of clean slate laws to navigate.
Are there any industries or types of jobs where clean-slate laws have a more significant impact on hiring practices?
Background checks were born out of a desire to provide safe workplaces and communities. While individuals with a prior criminal history should be eligible for work, not every job is right for every person. Companies may not want to hire individuals with convictions for violent crimes, for example, and if you’re an employer hiring an accountant, you want to be sure that candidate does not have a history of fraud, theft or embezzlement. One could argue that these clean-slate laws, especially California’s, will impact an employer’s ability to make a more informed hiring decision.
Certainly, positions that work with sensitive populations, such as children or the elderly, will have valid concerns over the removal of particular records that could be impactful to a hiring decision, but employers across all industries who leverage criminal background checks as one of the tools to help provide safe workplaces will have the same concerns.
What steps can employers take to ensure compliance with clean-slate laws while still prioritizing workplace safety and security and recruiting top talent in a competitive job market?
Employers must recognize that broader criminal justice reform efforts, which includes clean slate legislation, will continue to proliferate in cities and states across the country. Beyond clean-slate laws, employers are dealing with an even more complex network of ban-the-box and fair-chance laws that impose additional requirements and restrictions when using criminal record information.
Further, the Equal Employment Opportunity Commission continues to emphasize its stance on criminal records use by employers as demonstrated in a recent lawsuit against a regional convenience store chain. We, of course, cannot leave out the need for employers to properly comply with the Fair Credit Reporting Act and various state laws that regulate the use of background reports as well.
Layered on top of the various, and sometimes conflicting, laws and regulations, is the struggle many employers continue to have filling open positions. Employers should re-evaluate their company’s policy on how criminal records are used in employment decisions. To the point, are candidates potentially being denied for convictions that may not quite be job-related? Is your company still using an adjudication matrix that was designed and implemented a decade ago? It’s probably time to take a fresh look.
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