Reminder: North Carolina Law Now Prohibits Employer Inquiries About Expunged Criminal Records

Under the recently enacted Senate Bill 91 (effective December 1, 2013), North Carolina employers now are prohibited from requiring job applicants to disclose information (in interviews, on applications or otherwise) concerning any arrests, criminal charges or criminal convictions that have been expunged from the applicant’s record. An employer is also prohibited from asking job applicants about any arrests, charges or convictions that the employer knows have been expunged.  

In addition to these restrictions on employers, the new law expressly permits applicants to omit reference to or information about arrests, charges or convictions that have been expunged in responding to any questions concerning arrests, or criminal charges that have not resulted in a conviction. 

Importantly, Senate Bill 91 does not prohibit employers from inquiring about criminal charges or convictions that have not been expunged. However, employers should avoid seeking information or making inquiries in a way that results in the disclosure of expunged arrests, charges or convictions. 

In light of these broad new prohibitions, employers would be well advised to review their hiring and background check policies and practices to ensure that they do not expressly require disclosure of expunged records and cannot be construed to require the same. Employers also should consider revising onboarding forms to make clear that they are not seeking, and applicants should not disclose, any information regarding expunged arrests, charges or convictions. 

The new law does not provide aggrieved individuals with a private right of action against an employer; however, any employer found to be in violation may receive a written warning for its first violation and may be subject to a civil penalty of up to $500 per subsequent violation. 

Senate Bill 91 may be found HERE.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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