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Posted on: Nov 3, 2017

Indiana Bans "Ban the Box" But with New Protections for Employers and an Executive Order on "Fair Chance Hiring"

By Sara R. Blevins, Lewis & Kappes PC

The last decade has seen nationwide momentum for laws limiting, to various degrees, inquiries into the criminal histories of job applicants. Currently, at least 28 states and approximately 150 local governments have passed such laws. In 2014, the Indianapolis City-County Council passed an ordinance that restricted the use of criminal histories in hiring practices for some employers. Indianapolis Ordinance 671 was part of this nationwide “Ban the Box” initiative aimed at giving people with criminal histories a “fair chance” at a new start. The Indianapolis Ordinance applied to City jobs, City vendors, and any Marion County employer receiving an economic incentive from the City, with limited exceptions.

However, the 2017 Indiana General Assembly put an end to local “Ban the Box” efforts with SB 312, effective July 1, 2017, as P.L. 210-2017. This new law, codified at Indiana Code § 22-2-17, provides that, unless federal or state law says otherwise, a local government may not prohibit an employer from obtaining or using criminal history information during the hiring process. This new state law voids Indianapolis Ordinance 671 and prevents similar future efforts by other local governments. Although the law was presumably passed in an effort to create uniformity throughout the State, because the new law does not include statewide limitations on use of criminal histories in hiring, it does create the appearance of the legislature’s general disapproval of “Ban the Box” laws.

Whatever the legislature’s thoughts on the matter, Governor Holcomb has explicitly stated his disapproval of restriction on private employers’ hiring practices, while at the same time restricting criminal history inquiries of applicants for state government positions. On June 29, 2017, the Governor issued Executive Order 17-15, entitled “Fair Chance Hiring Process.” This Executive Order provides that, effective July 1, 2017, applications for employment with Indiana’s Executive Branch will not include questions regarding criminal history, unless otherwise required by law. Background checks will still be conducted later in the process. In a statement released in conjunction with the issuance of this Executive Order, Governor Holcomb explained: “While I do not believe governments should dictate employers’ hiring processes, I believe everyone deserves a second chance...For that reason, the state agencies under my watch will provide those with a criminal record more opportunity to join the workforce.”

Although rejecting restrictions on criminal history inquiries, SB 312 does attempt to provide some incentive to employers to consider hiring applicants with criminal histories. The new law creates limitations on what evidence may be introduced against an employer in litigation arising out of the conduct of its employees. Criminal history information for an employee or former employee may not be introduced as evidence against an employer in a civil lawsuit that is based on the conduct of the employee or the former employee if (1) the nature of the criminal history information does not bear a direct relationship to the facts underlying the civil action; (2) before the acts that gave rise to the civil action occurred, the record of the criminal case was sealed, the conviction was reversed or vacated, a pardon was issued, or the criminal conviction was expunged; or (3) the criminal history information concerns an arrest or charge that did not result in conviction. These evidentiary limitations will most often come into play in claims for negligent hiring or negligent retention. Given that a claim for negligent hiring or negligent retention already requires a showing of foreseeability, see, e.g., Sandage v. Bd. of Commissioners of Vanderburgh Cty., 897 N.E.2d 507 (Ind. Ct. App. 2008), and in light of the rules of evidence pertaining to relevance, it remains to be seen what practical effect, if any, these new evidentiary limitations will have on mitigating employer risk in hiring employees with criminal histories.

Although “Ban the Box” is seemingly at an end in Indiana for all but state job applicants, employers should remember that EEOC Guidelines encourage individualized assessment of applicants in light of job requirements and business necessity. Furthermore, Ind. Code § 35-38-9-10(d) still prohibits employers from asking about expunged arrests and convictions. With these limitations in mind, employers in Indiana may move forward with a bit more certainty about the future of criminal history inquiries in their hiring practices.

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