Employers: if the applicant you are about to hire as a bank teller was once convicted of embezzlement, would you want to know about it? Under North Carolina’s new law (pdf), employers are prohibited from questioning the applicant about his or her conviction if it was expunged. Even a basic question concerning the applicant’s criminal history may violate the new law.
An expungement (also called an “expunction”) is a legal process that clears an individual’s prior criminal history and the public record and permanently seals court files, as well as the records of any other state agencies. In other words, an expunction can erase certain crimes from an individual’s criminal record.
North Carolina employers are prohibited from seeking or asking about criminal histories in a way that results in the disclosure of any expunged information.
According to the North Carolina Justice Center, expunctions are relatively rare and are generally limited to first-time, nonviolent offenses committed more than fifteen years ago, first-time offenses committed under age eighteen or twenty-two, or charges that were dismissed or disposed “not guilty.” Despite their infrequent use, expunctions now have a significant chance of eventually appearing on a background report (pdf) due to the expansion of technology and the rise in the sale or transfer of records. Although a petitioner may deny the charge or conviction’s occurrence on his or her criminal background report, individuals often just explain the record’s expunction by court order.
Article 5 of Chapter 15A of the North Carolina General Statutes was amended by adding a new section, N.C. Gen. Stat § 15A-153, effective December 1, 2013. Under this new law, North Carolina employers are prohibited from questioning prospective employees in a way that may result in revealing an expunged arrest, charge, or conviction. Express inquiries about expunged records are rare, but now employers are prohibited from seeking or asking about criminal histories in a way that results in the disclosure of any expunged information.
The new law also states that employers, with the exception of law enforcement agencies, “shall not, in any application, interview, or otherwise, require an applicant for employment or admission to disclose information concerning any arrest, criminal charge, or criminal conviction of the applicant that has been expunged . . ..” Additionally, an employer must not ask about an expunged arrest, criminal charge, or criminal conviction even if the employer already knows about it. Good practice for any employer may include the revision of forms to clarify that the applicant should not disclose expunged information, and that the employer is not seeking information about expunged arrests, charges, or convictions.
If an employer asks anyway, violations may be civilly penalized up to $500 per incident.
If an employer asks anyway, the applicant does not have to respond to “any question concerning any arrest or criminal charge that has not resulted in a conviction” and need not reference such expunged information. As N.C. Gen. Stat. § 15A-146 explains, “an applicant with an expunged criminal record may state that no such action has ever occurred.”
The employer’s questioning could also lead to penalization under the new law. Section 15A-153 violations occurring on or after December 1, 2013, may result in an initial warning (pdf) from the Commissioner of Labor, and subsequent violations may be civilly penalized up to $500 per incident. However, the new law does not statutorily create a new private cause of action for applicants on the basis of employer violations.
An employer may still ask a job applicant “about criminal charges or convictions that have not been expunged and are part of the public record.” An expunction does not necessarily mean that the potential employer will not find out about an applicant’s prior charge or the conduct that led to it. Employers may still take advantage of mediums such as social media sites and newspapers to discover employee misconduct.
It is not unlawful if the employer shows that the exclusion is “job related and consistent with business necessity” for the position in question.
While there are approximately 1.6 million North Carolinians (pdf) with criminal histories, many will not be erased under North Carolina’s expunction statutes. Those individuals may find alternative sources of legal relief through federal law. Under federal anti-discrimination statutes, employers generally cannot inquire about arrest or conviction records. Even if an employer’s vetting procedure filters applicants uniformly on the basis of their unacceptable criminal records, an exclusion of applicants based on their race, national origin, or another protected class is unlawful under Title VII of the Civil Rights Act of 1964. Although applicants with criminal records are not in a protected class, minorities with criminal records may be protected under Title VII.
However, it is not unlawful if the employer shows that the exclusion is “job related and consistent with business necessity” for the position in question. According to the U.S. Equal Employment Opportunity Commission (“EEOC“) guidelines, a policy or practice that is not job related, is inconsistent with business necessity, and excludes everyone with a criminal record from employment violates Title VII. Additionally, the Fair Credit Reporting Act (“FCRA”) establishes many procedures (pdf) for employers obtaining information on criminal history from third-party consumer reporting agencies, including background checks and investigative reports.
Employment background checks, also called consumer reports, can contain information from several sources and may include credit reports and criminal records. The FCRA’s regulations require employers to obtain written authorization before applying for the report. Similarly, employers using investigative reports (pdf) – based on personal interviews regarding an individual’s personal character and characteristics, reputation, and lifestyle – must give (1) a written notice that the employer may request or has requested an investigative consumer report; (2) a statement declaring the individual may rightfully request more disclosures; and (3) a summary of the scope and substance of the report.
As the movement to “ban the box” spreads, employers should be cautious throughout the application process given the increased risk of liability.
For example, imagine that a bank’s job application form for a bank teller position requires all job applicants to check “yes” or “no” to the question: “Have you ever been convicted of a crime?” The bank then removes applicants who checked “yes” from further consideration based on their prior conviction. Because of this question, the bank could be subject to liability under Title VII. Furthermore, if this situation occurred in North Carolina, the employer could also be liable under the new law, N.C. Gen. Stat. § 15A-153.
As the movement to “ban the box” spreads, employers should be cautious throughout the application process given the increased risk of liability. According to Constangy Brooks & Smith LLP, a leading employer’s firm with offices nationwide, it would be prudent for North Carolina employers to think about revising their employment applications, background check procedures, and anything else that could be reasonably construed as a disclosure of expunged records.
Overall, certain revisions to job applications questioning an applicant’s criminal history may save an employer from being penalized. Employers should consider adding provisions to forms and applications, narrowing the questions to certain time limitations, and restricting the questions to a certain degree or nature of the crime. Hiring and background check policies and practices should not expressly, or possibly be construed, to require disclosure of expunged records.