Category Archives: Uncategorized

New Employment Policies

Helping Those with Criminal Records Overcome an Employment Hiring Bias

One large employer has adopted new policies affecting the impact of criminal records in its employment process.

Recent legislative efforts in our state to help those with criminal records secure gainful employment have resulted in new laws and the modification of others. Efforts have been made to increase the number of offenses that qualify for expunction (See A Criminal Conviction May Qualify for Expunction / Expungement), to decrease the amount of time that it takes for an expungement petition to be reviewed by state agencies (See Expunction Process Delays – The Good News) and to restrict the circumstances under which a potential employer can inquire about a criminal record that has been expunged (See New Don’t Ask Don’t Tell Rules for Expunctions).

Legislators in other states likewise have attempted to help those with criminal records find employment, and at least one of these efforts has ramifications for potential employees in our state. Minnesota, like a growing number of other states and municipalities, had restricted inquiry into one’s criminal record until the applicant completed the initial application for employment. The idea behind the restriction is to allow an applicant to demonstrate his or her qualifications before being automatically disqualified for a criminal record.

Recently, the Minnesota legislature extended this restriction cover private employers as well. After January 1, 2014 all employers in the state will have to wait until an applicant has been selected for an interview or has been extended a conditional offer of employment before asking about the applicant’s criminal record or performing a criminal background check.

Minneapolis based Target Corporation, Employmentwill fall under these new restrictions. Rather than maintaining different hiring practices in different states, Target decided to adopt this approach to hiring in all of its stores. Accordingly, the nation’s second largest retailer recently announced that it is removing questions about criminal history from its job applications. As a result, potential employees in North Carolina no longer will be asked on a Target job application about their criminal history or check a box if they have such a record.

This “ban the box” approach has been advocated by the U.S. Equal Employment Opportunity Commission since May of 2012. Some 10 states and over 50 cities have adopted this approach. As other companies adopt the restriction, the practice will benefit North Carolina residents even if our state legislature fails to adopt such a strategy in its continued efforts to decrease the collateral consequences for those with non-violent criminal offenses on their records.

Efforts to Fix Expunction Delays – The Bad News

Efforts to Alleviate the Expunction Delays – Here’s the Bad News

In an effort to alleviate expunction delays, fees for almost all expunctions have been increased by the 2013 NC Appropriations Act.

A major obstacle for those who qualify for an expungement in North Carolina has been the expunction delays set in place by a state budget deficit that crippled the agencies charged with running background checks for applicants. As previously noted (See Expunction Process Delays – the Good News), the state’s 2013 Appropriations Act directs the fees that are charged by the state for expunctions to these agencies, which should allow for more personnel to be hired to run the required background checks.

The state legislature, however, went one step further in providing additional revenues to these agencies by raising the fees that are charged by the state for expunctions. As of September 1, 2013 the state fee that must be paid increases to $175.00 forExpunction Delays - Bad News Regarding Fix all expunctions, with one exception noted below.

These increases raise all the fees for expunctions to the level introduced in 2012 with the legislation that allows expunction of certain convictions for those over the age of 18 at the time of the offense. This legislation greatly expanded the number of people who qualify for an expunction of their criminal record (See A Criminal Conviction May Qualify for Expunction / Expungement).

As a result of the increase in fees, several types of expunctions that had no state fee now will require payment of the $175.00. Perhaps the most controversial is for expunction of dismissals.

Under the new fee schedule, dismissals that are obtained as the result of a deferred prosecution agreement in which the defendant agrees to certain conditions in exchange for a dismissal will now incur the $175.00 fee should one wish to expunge the criminal record of the charge. There remains no fee if a defendant challenges the charges and the district attorney decides not to prosecute or the defendant is found not guilty. After September 1st, these are the only circumstances under which no fee is assessed by the state for an expunction.

As a result of these changes, those arrested at the Moral Monday protests who accept the reported offer by the Wake County District Attorney to complete 25 hours of community service in exchange for a dismissal of the charges (as reported HERE) will incur a state fee of $175.00 in addition to any legal fees should they seek to have the dismissed charge expunged.

For some in this and similar situations the additional fee may impact the decision whether to challenge their particular criminal charge. Some deferred prosecutions already require payment of a $250.00 supervision fee. With the additional $175.00 fee for an expunction in these circumstances, more people may decide to take their chances in court. The result may be an increase in the number of trials for a district attorney, something that deferred prosecutions were intended to reduce.

In the end, the new fees should increase the resources available to fund the background checks that are required for expunctions and help with the current expunction delays. Whether they create other problems remains to be seen.

If you have a criminal record that you wish to have expunged or need additional information, contact Xpunctions.com by phone, email or the Contact Form on this website.

Expunction Process Delays – The Good News

Here’s the Good News Regarding Delays in the Expunction Process

Additional revenues and personnel to handle the expunction process provided to agencies by the 2013 NC Appropriations Act.

In the last couple of years the state legislature has enacted several laws to decrease the consequences of a criminal record. Among these efforts was an expansion of the types of crimes that can be expunged, thereby increasing the number of citizens who qualify for an expunction of their criminal record ( See A Criminal Conviction May Qualify for Expunction / Expungement). In addition, the legislature has made some changes that make obtaining an expungement more attractive including a new law that restricts who can ask about records that have been expunged (See New Don’t Ask Don’t Tell Rules for Expunctions) and has created guidelines for how a criminal record should be weighed by an occupational licensing board when considering an application (See Criminal Records and Occupational Licenses). These efforts are to be commended.

As for expunging one’s criminal records, however, there has remained a significant obstacle in the expunction process. What used to take a month or less can take 6 months or longer today.

With the state budget crisis of a few years back the State Bureau of Investigation (SBI) and the Administrative Office of the Courts (AOC) had their resources cut. Both of these are involved in the expunction process.

Expunction Process

Image from NC State Library

The SBI has to search criminal records to confirm that there are no additional convictions that can disqualify an applicant. The AOC has to search for prior expunctions that likewise can disqualify the applicant. Unfortunately, these services were severely curtailed as a result of budget constraints, which has in turn created a severe backlog and delay in securing a court ordered expunction.

Under provisions in the recently passed budget appropriations act, the fees that are charged by the state for certain expunctions will be directed to the SBI and AOC instead of going into the general fund. The SBI will receive the greater proportion (70%) of the fees, which will allow for the creation and support of 5 new staff positions to help process petitions for expunctions and perform the criminal background checks.

The reapportionment of these fees becomes effective September 1, 2013. It is the hope of those who lobbied for these changes that the backlog and delay in the expunction process will soon be eased with the additional resources and personnel.

If you have a criminal record that you wish to have expunged or need additional information about expunctions, contact Xpunctions.com by phone, email or the Contact Form on this website.

Consequences

Collateral Consequences of a Criminal Court Record

Local Newspaper Addresses Collateral Consequences Associated with a Criminal Court Record

The Indy Week, a local newspaper serving Raleigh, Cary, Durham and Chapel Hill, contains an article this week entitled “Haunted by the Past” on the collateral consequences of a criminal court record. The subtitle title of the news story is likely not newsConsequences to most that have a criminal record: “With a criminal record, it’s tough to find a job.” In the article, the author puts a face on the problem by presenting how it has impacted a few individuals that attended a clinic held at the Henderson Library in Vance County.

In addition to the personal stories, there are some interesting facts in the article, which the author credits to the N.C. Center for Justice. According to this nonprofit organization that advocates for low and middle income 1.6 million – that’s with an M – North Carolinians have a criminal record. That is 1 in 5 people who reside in the state. According to the same organization, 92% of potential employers are checking those records.

While the record of many of these citizens contains only indicates an arrest or dismissal of charges, this still can have significant consequences. According to the article, 64% of potential employers are influenced by records that reveal only an arrest.

Collateral consequences, like the difficulty of gaining employment, are those that are not directly related to the punishment for a particular crime. In addition to creating a barrier to employment, a criminal record can cause you to be denied housing, admittance to a school, loan or occupational license.

Some gains have been made recently to help alleviate these collateral consequences (see A Criminal Conviction May Qualify for Expunction and Criminal Records and Occupational Licenses).

Contact Xpunctions.com to see if you qualify for an expunction of your criminal court record.

Criminal Records and Occupational Licenses

Effect of a Criminal Record When Seeking an Occupational License

Recent efforts in North Carolina to diminish the consequences of a criminal record when seeking an occupational license

North Carolina law regulating boards that grant occupational licenses was recently amended in an attempt to reduce the impact that a criminal record may have on an applicant.

This is not the first attempt byOccupational License lawmakers to ease such consequences. In 2011 the legislature created a Certificate of Relief that a Superior Court can issue upon finding that, among other things, at least 12 months have passed since completion of the petitioner’s criminal sentence, the petitioner has no other pending criminal charges, the petitioner is was seeking to be involved in a lawful occupation, and the petitioner does not pose an unreasonable risk to the public.

Once granted, an applicant can present the Certificate of Relief to an administrative agency, government official or to another court. Unfortunately, the law does not dictate what if any weight should be given the Certificate of Relief. In other words, being granted a Certificate of Relief is no guarantee that one’s criminal record will not result in a denial of an application for an occupational license.

A new law that went into effect on July 1,2013 takes another approach to address the issue. It creates guidelines for how a criminal record should be weighed by an occupational licensing board when considering an application.

While existing laws still prevent applicants with criminal records from being granted certain licensures (in the area of criminal justice for example), the new law prohibits most licensing boards from automatically denying licensure based on an applicant’s criminal history. Instead, licensing boards are required to consider several factors to determine whether a denial is warranted. The factors include the seriousness of the crime, the date of the crime, the age of the applicant at the time of the offense and the circumstances, how closely related the offense is to prospective duties of one who holds the license, and any affidavits or other documents that address character. While no reference is made to the Certificate of Relief, presumably it would be relevant to one’s character.

It remains to be seen whether the new law will have much of an impact on the granting of occupational licenses to those with a criminal record. The guidelines are fairly vague in that they do not dictate how the factors are to be weighed. The new law merely requires a board to consider these factors. In the end, licensing boards may not be interested in diminishing the impact of a criminal record on the granting of licenses in their professions.

Ultimately, the best way to overcome a criminal record is to expunge it. Xpunctions.com may be able to erase your past through the process of expunction. With an expungement you need not reveal the past criminal offense in most situations. After December 1, 2013 another new law discussed HERE requires state agencies to inform an applicant that any arrest, charge or conviction that has been expunged need not be revealed on an application. Call, email or use the Contact Form for more information regarding expunctions and to see if you qualify.

If you do not qualify for an expunction under state law, you may still seek to obtain a Certificate of Relief. The Ivie Law Firm can file a petition on your behalf and be your advocate with the court.

A Criminal Conviction May Qualify for Expunction / Expungement

Even though you have been convicted of a crime, you may still qualify to have that conviction expunged from your criminal record. Under state statutes, misdemeanor and felony convictions can be erased.

In North Carolina, if you have ever been chargedConviction with a crime, that fact appears on your criminal record – even if the charge was dismissed. But, expunctions, also known as expungements, are not limited only to dismissals. Depending on your circumstances, a criminal conviction may also be eligible for expunction. This used to be true only for a misdemeanor conviction that occurred while a minor (or under the age of 21 if the conviction was for underage alcohol possession). There remain separate laws for expunctions under these circumstances.

In 2012 laws went into effect that expanded the circumstances under which a misdemeanor or felony can be expunged from your criminal record. They are intended to help those with a felony conviction for a crime committed while under the age of 18 and those with a misdemeanor or felony conviction for a crime committed while 18 years of age or older. Under these laws, you may qualify to have your conviction expunged if:

    • The conviction was for a Class 1 through 3 misdemeanor. (Class 1A offenses do not qualify)
  • The conviction was for a Class H or I felony.

 

  • The conviction was for a non-violent offense and was not a sex-offense. (Certain stalking ad drug related offenses are also excluded)

 

  • You have had a clean record other than the conviction that you wish to expunge. (No additional convictions other than traffic violations – However, multiple convictions that were adjudged in the same session of court and from the same conduct may qualify for expunction)

 

If the conviction was for a felony you committed while under the age of 18, at least 4 years must have passed since the end of your active sentence, probation, or post-release supervision, and you will have to complete at least 100 hours of community service. If the conviction was for a crime committed after you turned age 18, at least 15 years must have passed since the end of your active sentence, probation, or post-release supervision before a petition can be filed.

North Carolina Expungement Laws are somewhat complicated. Contact Xpunctions.com for a free consultation to determine whether you qualify to have a conviction expunged from your criminal record. Call, email or use the Contact Form for additional information.

 

New Don’t Ask Don’t Tell Rules for Expunctions

New guidelines regarding inquiries into expunged criminal records by employers, schools and administrative agencies go into effect December 1, 2013.

Having your criminal record expunged means that the government and law enforcement agencies no longer maintain the information in a data base. That did not, however, keep a potential employer or school from asking about expunctions on an application – that is until now.

In an effort to provide greater protections for those who receive expunctions, the governor recently signed into law a new statute that prohibits potential employers and educational institutions from requiring an applicant to disclose information about an arrest, criminal charge or conviction that has been expunged from the applicant’s record. The new law also prohibits these same folks from knowingly and willingly trying to get information about a criminal charge or conviction that they know has been expunged.

The importance of the first prohibition may be obvious. After all, what good is obtaining an expunction only to feel pressured into revealing the information that was expunged when asked by an employer or school?

The second prohibition is important because the state is not the only party that may have a copy of your criminal record. Third party reporting agencies are not routinely notified that a particular offense has been expunged. While you are able to have such information removed, you may not know who has the information buried in some database. Under the new law, an employer or school cannot go snooping for a record that they know has been expunged.

The law also requires state agencies, including those that issue occupational licenses, to first advise that the applicant is not required to reveal any arrest, charge or conviction that has been expunged before requesting  information concerning the applicant’s criminal record. The only exception applies to those entities that hire, train and supervise members of law enforcement. As long as your license application is for work in some other profession, you no longExpunction Expungeer need to disclose any record that has been expunged, and your application cannot be denied solely for refusing to disclose any such information. Since criminal conduct can be grounds for rejection – most licensures require you to meet a good character standard – permission to keep the information secret is probably a good thing.

The law also contains some consequences for violating the new restrictions, though these are limited to potential employers. The first violation can result in a warning followed by a civil penalty of up to five hundred dollars for each subsequent violation. The law does not create a private cause of action against an employer, school or agency that violates the law. In other words, you won’t be able to sue because someone violated your right to keep the conduct a secret or because the information results in you not getting the job, education or license you wanted.

Xpunctions.com may be able to clean up your criminal record. Call us or use the Contact Form on this website to see if you qualify.