New Year Brings New Record Sealing Laws Into Effect

Between “ban the box” and Fair Chance laws, many levels of government across the United States have spent the last several years engaged in efforts to expand opportunities and lower the barriers that those with criminal records face in society. With the arrival of 2023, three states are set to make sweeping changes in their laws. What are they?

• In Connecticut, which will soon open the doors to legal recreational marijuana sales, the state sought to undo the legacy of the War on Drugs by automatically eliminating more than 43,000 low-level, low-severity convictions. Low-level crimes usually include possession and follow similar mass pardons for federal cannabis possession charges and similar moves in states such as Oregon.
• In Arizona, the number of convictions eligible for sealing has expanded. High-level violent felonies and sex crimes remain ineligible, but many other felony offenders, including those with crimes of minor violence in their past, will now be able to seal their records.
• California has gone even further. Virtually anyone can now apply to seal their records provided it has been four years since the applicant was freed from incarceration and they have not committed any other felonies. Crimes that require entering the sex offender registry remain ineligible, but otherwise, California has chosen to undertake a massive expansion of opportunity.

There are some pitfalls to understand for employers in these states and other jurisdictions that have undertaken extensive efforts to overhaul the criminal record expungement process. State laws generally restrict employers from considering sealed arrests and convictions in the hiring process. Violating those laws could carry penalties or the potential for civil lawsuits. Therefore, it is important to understand that conducting background checks in states with expanded expungement/sealing requires additional care.

Not every state instantly records a conviction’s status change once it goes under seal. It can take time for the order to percolate through the courts and reach the appropriate individuals. Simultaneously, third-party consumer reporting agencies may scrape these databases between an expungement order and its execution. 

The precise logistics of how to notify third-party agencies to ensure the proper destruction of sealed records remain undecided. While it has always been possible for such a mismatch to occur, changing conditions make it potentially more likely. Employers should therefore exercise additional caution in how they approach the interpretation of background checks. Using the EEOC factors, which include judging relevance to the job role and the age of the conviction, can help. Recognizing a conviction type that may very likely be sealed, such as a cannabis conviction in Connecticut, is also essential.

These new laws have the potential to create far-reaching changes that open new opportunities for many of the formerly incarcerated. For employers, these changes are an important reminder that criminal record check processes cannot be static. Instead, you must stay updated on the latest changes affecting your business and be prepared to adapt to shifting expectations quickly. Effective, compliant hiring processes depend on your resilience.