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More than 2 million North Carolinians, or 1 of every 4 adults in North Carolina, have criminal records. These criminal records range from charges that were dismissed to misdemeanor and felony convictions. Every type of criminal record triggers a variety of disabilities known as “collateral consequences.” While often unknown to individuals at arrest or conviction, the impact of these collateral consequences is potentially more severe than that of their criminal punishment. Collateral consequences isolate individuals from gainful employment, affordable housing, and family supports—the pillars upon which successful reentry relies. Accordingly, collateral consequences undermine community safety, waste state resources, and permanently position individuals with criminal records as second-class citizens.
Hundreds of state and federal statutes deny privileges and rights to individuals based on their criminal convictions. These disabilities attach at the time of conviction, but are distinct from the direct consequences of a criminal conviction (incarceration, fines, and probation). While much focus is given to the direct consequences of criminal conviction, these further civil penalties are often unknown to defendants and attorneys at the time of pleas. Their impact is severe, far-reaching, and long-lasting. They include loss or restriction of a professional license, ineligibility for public funds including welfare benefits and student loans, loss of voting rights, ineligibility for jury duty, and deportation for immigrants.
Coupled with barriers imposed by the state, individuals with criminal convictions are denied many other opportunities because of the personal biases of employers and landlords. Most applications for employment and housing ask about an individual’s criminal history. Similarly, 92% of employers run criminal background checks on applicants and often refuse to hire anyone with a criminal record.
A catalogue of civil disabilities in North Carolina is accessible here: https://ccat.sog.unc.edu
A criminal record often gives rise to significant barriers to employment, housing, and a variety of other benefits and opportunities essential to prosperity and stability. In North Carolina, an expunction is the destruction of a criminal record by court order. An expunction (also called an “expungement”) of a criminal record restores the person, in the view of the law, to the status the person occupied before the criminal record existed. With rare exception, when an individual is granted an expunction, they may truthfully and without committing perjury or false statement deny or refuse to acknowledge that the incident occurred. The primary exception to this is for purposes of federal immigration. Please see North Carolina General Statutes §15A-151 for other exceptions.
There is no single law covering all expunctions in North Carolina; instead, several statutes covering various types of criminal records. Contrary to common belief, opportunities to expunge a criminal record in North Carolina are actually quite limited in regards to criminal convictions. Expunction opportunities in North Carolina are generally limited to the following three categories:
- A first-time conviction of a “nonviolent offense”
- A first-time conviction of certain offenses committed before age 18 or 22
- A charge that was dismissed or disposed “not guilty”
“Nonviolent Offense” is a term of art that is defined in N.C.G.S. § 15A-145.5(a). It includes any felony or misdemeanor except those listed in the statute. Examples of offenses excluded from the definition are class A-G felonies, A1 misdemeanors, offenses involving assault as an essential element, or those requiring sex offender registration. See the statute for the full list offenses.
The key factors to determine eligibility for expungement of a criminal record are:
- What was the disposition of the offense (guilty, not guilty, dismissed, etc.)
- How old was the person at the time of the offense (under 18 or 22)
- How do you classify the offense (violent vs. nonviolent, controlled substance, etc.)
- Does the person have any previous or subsequent convictions that would disqualify them
- Is the relevant waiting period satisfied?
There have been significant reforms to the expunction process and expunction eligibility as a result of changes signed into law by Governor Cooper on July 28, 2017. The following are some of the key differences for expunction petitions filed after December 1, 2017:
- The wait periods for expunction of a nonviolent misdemeanors and felonies have been reduced from 15 years to 5 and 10 years, respectively
- A person can now expunge multiple dismissed charges and charges disposed “not guilty”. As long as the person has not been convicted of a felony, they are eligible to expunge all such charges.
For specific eligibility criteria, please see the 2018 Summary of North Carolina Expunctions.
Private employers are generally permitted to deny employment based on a criminal record if the employer conducts an individualized determination of the appropriateness of hiring that individual. Put another way, an employer should consider the relationship between the job the person is seeking and the person’s criminal record. Accordingly, blanket bans on hiring any person with a criminal record are potentially illegal.
Many jobs in North Carolina require certification or licensure. North Carolina automatically prohibits licensure of a limited number of occupations. Most occupational licensing boards are not prohibited from granting licensure to individuals with criminal records; instead, these boards are provided the discretion to deny licensure based on consideration of certain types of criminal convictions. Based on a change in the law advanced by the NC Second Chance Alliance, independent occupational licensing boards must consider “fair chance” factors in determining whether or not someone is fit for a license or certification (see Session Law 2013-24, Use of Criminal History Records by Licensing Boards.)
According to the Society of Human Resource Management, at least 80 percent of private employers now use criminal background checks as part of their hiring processes. More than 800 background check companies and reporting agencies now exist in the United States. The information provided by these companies generally comes from state repositories, courts, state and local databases, and the National Crime Information Center.
Information provided to employers may contain errors from source materials, identity theft, or mistakes made by the reporting agencies. Common errors include (i) cases that were supposed to be expunged or sealed, but were not; (ii) arrests that did not lead to court case filings; (iii) warrants for arrests that were, or should have been, vacated, but are still reported on the “rap sheet;” (iv) missing resolutions, results, and decisions of court cases; and (v) specific convictions that are reported incorrectly.
Job-seekers should request a copy of their own criminal records and review them for mistakes, including missing information. Errors should be reported to the reporting agency for prompt action and/or investigation. The reporting agency is required by law to change the disputed information if it is inaccurate.
The Fair Credit Reporting Act provides the following protections in regard to background checks: (i) reporting companies must provide individuals with notice if a background check contains information that may have an adverse effect on the applicants’ ability to obtain employment when submitted to an employer; (ii) arrests more than seven years old should not be reported if the arrests did not result in convictions; and (iii) if an employer plans to take an adverse employment action based on the background report, the employer must inform the applicant that they are taking this adverse action based on the criminal record and provide the applicant an opportunity to obtain a copy of the record.
Employers are permitted to ask about and consider conviction records—and in some cases, arrest records—when making employment decisions. The federal government, through Equal Employment Opportunity Commission policy, provides employment discrimination protection for people with criminal records. These policies require employers to make individual determinations about the appropriateness of hiring someone, rather than permitting employers to have blanket bans on hiring anyone with a criminal record. In particular, they require employers to consider the relationship between the job the person is seeking and his or her criminal record.
A handful of local jurisdictions in North Carolina have ordinances or policies for public hiring that prohibit questions on job applications about criminal history, as well as prevent the use of criminal background checks until an individual is in the final stages of the hiring process. These types of regulations, popularly known as “ban the box” initiatives, are intended to ensure that individuals are fairly judged on their merits when pursuing employment.
Title VII of the Civil Rights Act of 1964: Title VII prohibits employment discrimination based on race, gender, and other protected classes. While individuals with criminal records are not a protected class, Title VII protections have been partially extended to minorities with criminal records based on a disparate impact theory. For guidance on these protections, please visit here: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. To learn more about filing a Title VII charge of discrimination, please visit here: http://www.eeoc.gov/employees/charge.cfm
Title VIII of the Civil Rights Act of 1964: Title VIII prohibits housing discrimination based on race, gender, and other protected classes. While individuals with criminal records are not a protected class, Title VIII protections have been partially extended to minorities with criminal records based on a disparate impact theory. For information on how to file a complaint with the US Department of Housing and Urban Development, please see here: http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/complaint-process
Fair Credit Reporting Act: Employer and landlord use of criminal background checks are often regulated under the Fair Credit Reporting Act. For more information please visit here: http://www.consumer.ftc.gov/sites/default/files/articles/pdf/pdf-0096-fair-credit-reporting-act.pdf
Many job-seekers struggle to explain their criminal records to potential employers. Inaccurate information or an omission may disqualify individuals from employment. In live interviews, if a person chooses to disclose and discuss their criminal record, it is suggested the person: (i) acknowledge the previous mistakes in a concise and businesslike way; (ii) mention any relevant skills or interests developed while in prison or prior to entering prison; and (iii) reinforce a commitment and an interest in the new job, by stating, for example, “I’m more mature now and my top priority is to work at [company] to use my abilities, focus on the work, and make a fresh start.” Applicants should be familiar with their criminal history to be able to answer accurately specific questions on job applications and in interviews.
Employers may be reluctant to hire job applicants with criminal records. In a survey of 3,000 employers in four major urban areas (Atlanta, Boston, Detroit, and Los Angeles), only 40 percent said they would consider hiring a person with a criminal record. See http://www.urban.org/uploadedPDF/410855_holzer.pdf. One of the primary reasons offered by employers is fear of incurring liability if they hire someone who then commits a crime on the job.
Generally, in determining whether an employer is liable for negligent hiring, courts will determine whether the employer could have foreseen the crime. They will consider whether the employee had a history or propensity for harmful behaviors and whether the employer knew or should have known about them. An employer’s reasonable efforts to determine whether the applicant’s criminal record poses a risk or is related to his or her fulfilling the requirements of the job will minimize potential liability.
Certificates of Relief—established by the North Carolina General Assembly in 2012 (see Session Law 2011-265)—shield employers (landlords, school admissions officers, etc.) from liability for negligent hiring (leasing, admission, etc.). NCGS § 15A-173.5 provides “a Certificate of Relief is a bar to any action alleging lack of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with the individual to whom the Certificate of Relief was issued, if the person against whom the judicial or administrative proceedings is brought knew of the Certificate of Relief at the time of the alleged negligence.” There are currently bills (House Bill 671, Senate Bill 455) before the North Carolina General Assembly to expand certificate of relief eligibility to multiple convictions of misdemeanor or Class G, H, and I felony offenses.
The following financial incentives are commonly available to employers who hire a job applicant with a criminal record:
- Work Opportunity Tax Credits: Available to private employers who hire targeted groups of traditionally underemployed workers, including people with criminal records. Businesses can receive a one-time tax credit of $2,400-$9,600 for hiring a qualified job applicant; the amount varies, depending on the hire. While some states offer state-level tax credits, North Carolina does not. https://www.nccommerce.com/workforce/businesses/work-opportunity-tax-credit
- Federal Bonding Program: Protection for employers against theft or fraudulent actions of “at-risk” populations, including individuals with criminal records. The Federal Bonding Program issues fidelity bonds that act as insurance policies that will cover losses to employers or employment agencies. These instruments become effective immediately upon employment and are free to the employer. Because they serve as protections and incentives for hiring, reentry practitioners should be familiar with how to procure them for employers and their clients. https://www.nccommerce.com/workforce/businesses/federal-bonding
For more information, please visit the NC Commerce Department here: https://www.nccommerce.com/wf/job-seekers/former-offenders
For more information and to get involved in the NC Second Chance Alliance, please sign up for our updates here. You can also contact Daniel Bowes at 919-861-2061 or email@example.com.