By Allen Smith, J.D.
Individuals with old criminal records have a greater chance of employment in the growing number of states—now 12—with clean slate laws. As these laws spread, more employers may benefit from a talent pool they haven’t tapped much before.
“Employers need to understand that there is a growing trend throughout the country to have clean slate initiatives,” said Pamela Devata, an attorney with Seyfarth in Chicago.
The first state to pass a clean slate law was Pennsylvania in 2018. Since then, clean slate laws have passed in California, Colorado, Connecticut, Delaware, Michigan, Minnesota, New Jersey, New York, Oklahoma, Utah and Virginia. In states where clean slate legislation has recently passed, The Clean Slate Initiative, headquartered in Orlando, Fla., will focus on enabling implementation.
Two federal clean slate laws have been proposed, noted Jason Cooper, vice president of programs for The Clean Slate Initiative. The Clean Slate Act of 2023 would not address state-level needs but would rather provide a pathway to clear federal records, he said. The Fresh Start Act would provide federal funding to support the implementation of state-level record clearance laws, he explained. “One in three people in the U.S.—about 70 million to 100 million people—have some kind of record, the majority of them for arrests, acquittals and nonviolent misdemeanors like minor drug possession,” according to The Clean Slate Initiative.
Nearly half of U.S. children have at least one parent with a criminal record, according to the Center for American Progress, a progressive policy institute in Washington, D.C. This can have negative consequences for school performance and employment outcomes in adulthood, the center noted.
How Clean Slate Laws Work
Most states let people petition for expungement or sealing of certain types of criminal records. However, only a fraction of people eligible for expungement or sealing obtain the relief. Navigating the complex record-clearing process can prove challenging, often requiring expensive legal assistance and court fees. Some are unaware of the option to petition for expungement or sealing. Clean slate laws offer a solution: automatic record-clearing once a person remains crime-free for a set period of time, the Center for American Progress stated.
“Because clean slate leverages research-based waiting periods, employers can rest easy knowing that potential employees who have benefited from clean slate laws are no more likely than anyone in the general public to commit a crime,” said Sheena Meade, CEO of The Clean Slate Initiative. New York’s Clean Slate Act calls for eligible misdemeanor convictions to be sealed after three years from an individual’s satisfaction of a sentence and for eligible felony convictions to be sealed after eight years from satisfaction of a sentence, said Kelly Cardin, an attorney with Ogletree Deakins in New York City and Stamford, Conn.
“Class A felonies for which a maximum life imprisonment sentence may be imposed—for example, murder and domestic terror—and convictions requiring registration as a sex offender are not eligible for sealing,” said Susan Corcoran, an attorney with Jackson Lewis in White Plains, N.Y. In New York, records are accessible where “relevant and necessary,” Cardin said. “Some examples are positions for which state or federal laws require criminal background checks for licenses and some positions with responsibility for the safety and well-being of children or adolescents, elderly individuals, individuals with disabilities or other vulnerable populations.”
Distinguishing Clean Slate Laws from Ban-the-Box Laws
Taken together, clean slate and ban-the-box laws provide “a parallel course,” Corcoran said.
“Ban the box” is generally a term that refers to disallowing employers from asking for criminal history on an employment application or during the hiring process, Devata said. In recent years, ban-the-box laws have been expanded to include items such as individualized assessment of certain convictions and notice requirements to applicants prior to taking any employment action based on criminal history, she noted.
“Ban-the-box laws prevent or limit an employer’s ability to ask about criminal convictions during the hiring process, whereas clean slate laws typically target sealing of certain criminal records,” Cardin said. “Clean slate laws essentially wipe the criminal record slate clean for individuals convicted of certain crimes and who have served their sentences” and satisfied the laws’ waiting periods.
Compliance Challenges
Compliance challenges may arise with clean slate laws. Particularly with newer clean slate laws, an employer might face a situation in which the candidate will disclose a sealed record out of an abundance of caution because they are unsure whether it has technically been sealed. “Put blinders on!” Corcoran said. “An employer should not consider a sealed record in jurisdictions that prohibit such consideration.”
The current patchwork of state laws requires that multistate hiring activities take into consideration any local requirements that apply, according to Mike Paglialonga and Stephen Fuchs, attorneys with Littler in New York City.
“This is made more difficult by remote work and wandering workers whose employment crosses state lines and by applicants completing online application forms from other areas of the country,” they added. “Employers have no choice but to have criminal history review procedures that vary by jurisdiction” and to consult counsel.
An employer would not be liable for negligence if it hired someone based on a conviction sealed under the New York Clean Slate Act, Paglialonga and Fuchs told SHRM Online. “Court cases against employers for damages arising from negligent hiring remain uncommon, and a number of states have enacted legislation protecting employers from liability for providing the formerly incarcerated a chance,” they added. “However, in states where there is no clean slate law or where the conviction has not been sealed, a negligent hiring or negligent retention claim remains a possibility.”
A prudent employer still must have sound hiring practices, Corcoran said.
