Labor & Employment Law Section
Mission
The purpose of the IndyBar Labor & Employment Law section is to promote the objects of the Association within the field of labor and employment law. To that end, it is the purposes of this section: (1) to concern itself with every aspect of labor and employment law; (2) to study, report upon and recommend improvements to legislation, whether Federal or State, pertaining to the section's concerns; (3) to bring together members of the Association interested in labor and employment law and to confer upon the various problems incurred in these areas; and (4) to promote the legal education of members of the Association and the public by sponsoring meetings, institutes and conferences and by preparing and publishing articles concerning labor and employment law.
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A Message from the Section Chair
“Welcome to the online home of the Indianapolis Bar Association's Labor & Employment Law section. As the 2012 chair of the section, I encourage you to get involved with the section, whether that means attending our educational programming, networking with colleagues at a social event or volunteering for service on the section's executive committee.”
Jeffrey B. Halbert - 2012 Labor & Employment Section Chair - Stewart & Irwin PC
The "Legal Lie": Indiana's Law and New Amendment Restricting Access to Conviction Records
By Kevin A. Stella, Hall Render Killian Heath & Lyman PC
There is a relatively new Indiana law and an even newer change to that law. On July 1, 2011, I. C. 35-38-8-7 went into effect and allows persons convicted of non-violent misdemeanors and Class D felonies (examples of Class D felonies include drunk driving, theft, and dealing or possession of marijuana) to petition a court to restrict access to the records eight years after a person has completed his or her sentence, provided the person has not since been convicted of a felony (the law does not apply to sex or violent offenders and certain juvenile offenses). However, the law does not stop there. It goes on to say that if the court grants the petition, then that individual may "legally state on applications for employment and any other document that the person has not been arrested for or convicted of the felony or misdemeanor recorded in the restricted records." This essentially allows the candidate to legally lie on an application for employment, as well as "any other document." The restriction also prohibits state, regional or local central repositories, and the department of corrections and law enforcement agencies, from disclosing the criminal history information to a noncriminal justice agency without a court order. In other words, the repositories and agencies cannot disclose the criminal history information to an employer in response to an employer initiated background check.
In March 2012, the General Assembly amended this law to close a loophole. Prior to the amendment, employers technically could ask applicants whether they had a record in the non-juvenile criminal justice systems that had been restricted from disclosure by a court pursuant to I.C. 35-38-8. However, with this amendment that becomes effective July 1, 2012, employers may not ask that question. Specifically, the law now provides: “An employer may not ask an employee, contract employee, or applicant whether the person's criminal records have been sealed or restricted. An employer who violates this subsection commits a Class B infraction.” A Class B infraction can result in a fine of up to $1,000.
With this amendment, Indiana employers should refrain from asking employees or applicants whether they have had their criminal records sealed. And, employers may want to consider limiting any questions about an employee's or applicant's criminal history to only events from the last eight years.
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Definining "Supervisor" in Title VII Cases
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