Delaware has proposed legislation that can provide a clean slate for those with certain types of misdemeanor offenses. Referred to as the “Clean Slate Act,” the legislation would allow the automatic sealing of records for non-violent federal misdemeanors involving marijuana and simple possession of drugs. The individual must prove that he or she has had no other criminal offenses within the past year to qualify. The Act does not include violent or sexual charges. The goal of the legislation is to help alleviate the adverse effect that misdemeanor drug convictions can have on those applying for employment, housing, and college.
Delaware is not the first state to consider or pass legislation that allows a second chance for those with criminal records. South Carolina recently passed Act No. 254 which goes into effect on December 27, 2018. Individuals who wish to have their records expunged must petition the court to do so. The Act only applies to juvenile offenses, first offenses, and minor drug offenses and the individual must have a clean record for 3 to 5 years. Once the records have been expunged, the individual will not be required to disclose the now-expunged records on employment applications. Furthermore, the law amends the status of pardoned records, which previously remained on one’s criminal record. Under Act No. 254, pardoned records are now automatically expunged and removed from one’s record. The Act also provides protection for employers who hire applicants with expunged records by shielding them from negligent hiring claims.
Pennsylvania also passed legislation that allows the sealing of minor criminal records where the party meets certain conditions. House Bill 1419, the “Clean Slate” bill, was signed in June 2018 and assists former offenders in several ways. First, a petitioner can ask the courts to seal his or her records if he or she has not had any convictions in the past 10 years involving sentences of a year or more in prison. The petitioner must also have satisfied all financial debts given by the court. Additionally, the bill allows automatic sealing of certain records, specifically second or third degree misdemeanors where the offender was sentenced to less than 2 years. The automatic sealing requires that the individual be free from convictions for 10 years. Finally, the new bill allows the sealing of records that did not result in convictions.
What does this new trend mean for employers and consumer reporting agencies (CRAs)? CRAs should not receive and cannot report any sealed records. Similarly, employers cannot take sealed records into consideration when making hiring decisions. The legislation could also impact applicants or employees on whom a background check report was previously ordered on an applicant. In this situation, both CRAs and employers may notice that records that were previously reported are now missing. While due diligence should be performed to determine the reason for the missed records, the inconsistency could be the result of this new legislation.
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