November 28th, 2022 | Chris Christian, Director of Compliance, Sterling
What Is the “Clean Slate” Law Movement?
Over the past several years, a social and legislative policy model has gained traction, known as the ‘Clean Slate’ Initiative. According to the Clean Slate Initiative, at least nine states have passed some version of clean slate laws, with many other jurisdictions looking to follow suit. This movement has also been gaining attention at the federal level. What should employers know about clean slate laws, and how can they help organizations to build more authentic workplace cultures?
What Are Clean Slate Laws?
In general, ‘Clean Slate’ laws refer to a legislative policy model to pass laws to provide relief for individuals with a criminal record history, allowing them to have their criminal records expunged or sealed from public record systems. The primary objective of clean slate laws is to eliminate barriers to employment or housing by providing opportunities help to those eligible for criminal record relief. Clean slate laws help people who have criminal history to reintegrate into society and contribute to their communities by making it easier to get jobs and find housing. In other words, these laws are intended to remove the stigma associated with a criminal record and allow people to move on from their past mistakes.
A Brief History of the Movement
Clean Slate laws are not the first legislative initiatives to attempt to remove stigmas associated with individuals who have a criminal past. Some of the earliest re-entry efforts (which still continue today) include the ‘Ban the Box’ policy model and ‘Fair Chance’ laws. Although the specific requirements may vary, ban the box and fair chance laws require that employers first consider a job candidate’s qualifications without the stigma of considering their criminal record history until after the application process, job interview, or conditional job offer. Read more about these laws and how they’ve evolved over time.
Ban the box, fair chance, and clean slate laws are all related, in that they are all different types of legislative initiatives revolving around the larger topic of criminal record reform in the US. But while ban the box laws and fair chance laws focus on how and when criminal history can be used by an employer, clean slate laws are designed to actually remove, seal, or expunge the underlying history altogether. While these types of laws are relatively new, there is ample evidence that clean slate laws are gaining more momentum across state and federal legislatures.
Clean Slate Law Variations
All clean slate laws attempt to provide a way for individuals with a criminal background check to avoid its negative effects when applying for work. However, the laws contain a wide range of paths forward, with varying degree, in which they provide criminal record relief to individuals. For example:
- Some laws provide record relief in order to restore an individual’s voting rights.
- Other laws expand a pardon’s impact on negating a criminal record.
- Additional laws prohibit employment discrimination based on criminal records.
- Other laws provide for automatic criminal record relief (meaning the individual doesn’t have to petition the court), petition-based record relief, judge-initiated record relief, or a combination of all three models.
- Finally, some of the earliest and most common laws were a petition-based model where the law provides a means to allow criminal record relief if an individual petitions the court.
Critics of petition-based models claim they are burdensome, costly, and ineffective because most applicable individuals are not even aware that a process is available to help them. As a reaction to these criticisms, some clean slate initiative organizations have strategically pushed legislative models that support automatic record clearing models for both conviction and non-conviction records. The models of clean slate laws that may be most relevant and impactful to employers and their background screening programs are models aimed at employment discrimination based on criminal records and automatic means to criminal record relief.
Below are a few states and their associated clean slate law model types.
Note: The list is not comprehensive and is only intended to provide examples of varying differences in each state’s own clean slate law model.
|State||Clean Slate Model Type|
|California||Automatic relief; Petition-based relief; Judge Initiated; employment discrimination prohibited|
|Michigan||Automatic relief; Petition-based|
|North Carolina||Automatic relief; Petition-based relief|
|Utah||Automatic relief; Petition-based relief|
|Virginia||Automatic relief; Petition-based relief|
Clean slate legislation has been trending upwards over the past several years. The National Conference of State Legislatures reports that from 2019 to 2021, 38 states have enacted 179 total bills specifically related to:
- A) dissemination, discrimination, and consequences of a criminal record, and;
- B) bills specifically related to any updating, sealing, or purging of criminal records by government agencies or entities, courts, and private companies (commonly referred to as expungement/sealing).
According to the Collateral Consequences of Criminal Conviction and Restoration of Rights, as of October 2022, there are 28 states allowing for some form of automatic criminal record-clearing law depending on the type of criminal record offense.
The federal government has also joined the clean slate movement with the introduction of HR 2864 (Clean Slate Act) and HR 5651 (Fresh Start Act). HR 2864 would require automatic sealing of certain criminal records and allow individuals the right to petition the sealing of certain federal arrest and convictions. HR 5651 would authorize the Department of Justice to award grants for states to implement automatic expungement laws. Both bills are currently active in the US House.
It’s difficult to know for certain what impact these laws may potentially have on employers and their background screening programs. After all, this legislative movement is still relatively young, complex, and evolving. One certain impact will be that employers must continually review and update their background screening program goals over time to adjust to these types of laws. If an employer performs background checks on job candidates, it’s inevitable that they’re going to encounter candidates who have had a past criminal record which was cleared by means of some version of a clean state law.
Clean slate laws may also limit what information employers can ask job candidates to self-disclose, if the candidates have followed the process to petition for removal, or if a record has been erased automatically. Note that some clean slate laws only clear records in statewide repositories, not in the corresponding court level record. Courts must maintain and update their records in locations where record-clearing only applies to the statewide repository. The laws will vary from state to state.
Therefore, employers will need to carefully think through these scenarios and adapt their background screening policies to handle them. Employers should also consider frequently reviewing their background screening policies and practices, while also consulting with legal counsel before implementing any changes. While clean slate laws first require some consideration before they can be effectively implemented, they’re an excellent way for organizations to take the next step with talented candidates full of potential.
For ongoing compliance updates and thought leadership content, visit our Compliance Hub.
Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.