Law Tips: Second Chance Law and EEOC Guidance

The significance to employees of recent Indiana Employment Law action is :

“It is unlawful discrimination to…”

  • Suspend
  • Expel
  • Refuse to employ
  • Refuse to admit
  • Refuse to grant or renew license

“because of a conviction or arrest record expunged or sealed under this chapter”

One of the current issues emphasized by Melanie Dunajeski, ICLEF’s Employment Law faculty member, in her update for the 35th Annual Indiana Law UpdateTM, is the “Second Chance Law” or Criminal Record Expungement legislation that was modified and clarified in 2013. She explains that this law provides a mechanism for sealing of arrest records and certain records of conviction. Her timely review includes information on guidance provided by the U. S. Equal Employment Opportunity Commission, that I am pleased to include in Law Tips:

The EEOC issued a Guidance on Employer Use of Criminal Background Checks on April 25, 2012, clarifying the EEOC’s longstanding position with respect to the use of arrest records in making employment decisions. While the new guidance does not prohibit employers from considering criminal information during the hiring process, it lists new steps that the EEOC contends employers must take to prevent discrimination under Title VII of the Civil Rights Act of 1964, including:  conduct an individualized assessment of the individual when considering criminal record; exclude from job applications questions about convictions; and develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.  The full text of the guidance may be found at www.eeoc.gov/laws/guidance/arrest_conviction.cfm (“Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964”).

Considerable concern has been generated by this guidance in that it conflicts with numerous state laws that require criminal background checks for certain positions, industries, and occupations.

I am grateful to Melanie Dunajeski and her co-author, Christopher Drewry, for the valuable input as to employment issues that could raise red flags for many employers and their attorneys. If you would like to hear Melanie’s thorough update on employment law, along with presentations by other expert faculty in a wide legal arena, check out ICLEF’s 35th Annual Judge Robert H. Staton Indiana Law UpdateTM

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About our Law Tips participants:
Melanie Morgan Dunajeski is a partner at Drewry Simmons Vornehm LLP, and manager of the firm’s Merrillville, Indiana satellite office. Her practice is concentrated in employment law, insurance coverage, litigation, and business disputes.

Christopher S. Drewry is an associate at Drewry Simmons Vornehm, LLP at its main office in Carmel, Indiana. Chris concentrates his practice in the areas of labor and employment law and construction law.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy.  She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you on Law Tips.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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