24 SEPTEMBER / OCTOBER 2017 HUMAN RESOURCES Debra A. Mastrian Partner SmithAmundsen LLC dmastrian@salawus.com SmithAmundsen LLC is a Diamond Associate Member of the Indiana Bankers Association. Article author ‘Ban the Box’ Ordinances Are Now Banned Some cities and counties, including the City of Indianapolis, have enacted ordinances restricting employers from asking about an applicant’s criminal history on an employment application or during various stages of the hiring process. These ordinances are commonly referred to as “ban the box” laws. The City of Indianapolis ordinance, passed in 2014, bans inquiries on initial employment applications for city employees, county employees and private contractors and vendors doing business with the city. However certain positions, for which convictions were a bar to employment under state or federal law, were excluded. These ordinances are now preempted under Indiana Senate Bill 312, which was signed by Gov. Eric J. Holcomb in April and became effective July 1. Under this law, political subdivisions – counties, townships, cities – are prohibited from enacting ban the box ordinances. Senate Bill 312 also contains a business liability reform section that prevents criminal history information regarding an employee or former employee from being used as evidence against an employer in a civil action involving the employee’s conduct in three situations: • If the nature of the criminal history information does not bear a direct relationship to the facts of the civil action against the employer; • If, before the acts giving rise to the civil action, the court sealed the criminal records or expunged, pardoned, vacated or reversed the conviction, or; • If the criminal history information relates to an arrest or charge that did not result in a conviction. Indiana is the first state to pass a law banning ban the box ordinances. The genesis of Senate Bill 312 related, in part, to businesses complaining of the unfairness of the ordinances and the difficulty in doing business in more than one city or county where employers had to try to comply with varying ordinances. Interestingly, Gov. Holcomb also signed an executive order, the Fair Chance Hiring Process, banning the box for public sector employees in the executive branch, unless the person has been arrested or convicted of a crime that precludes the person from employment in that specific job. What does this mean for employers? In general, employers should remain wary of asking for criminal history in an initial application. The Equal Employment Opportunity Commission views the use of such information as potentially discriminatory under Title VII of the Civil Rights Act of 1964, as amended, and has issued Enforcement Guidelines on the Consideration of Arrest and Conviction Records in Employment Decisions. Moreover, in 2013 Indiana enacted the “Second Chance Law,” which allows a person previously convicted of certain crimes to petition the court to restrict public access to the person’s record and prohibits employers from inquiring about, refusing to hire, or otherwise discriminating against a person because of a sealed or expunged conviction or arrest record.
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