Effective July 6, 2014, residents of Alabama can have records of certain arrests expunged. This will help potential employees who are applying for jobs by permitting them to legally answer “no” to questions concerning arrests on job applications if the record has been expunged. Although the EEOC, in its’ Enforcement Guidance, states that “an arrest record standing alone may not be used to deny an employment opportunity” and that a record of arrest should only be used cautiously because it does not prove any criminal conduct, the Alabama Legislature took this reasoning further and passed a 16-page law, which is very technical and sets forth a process to have an arrest expunged.
For those who have been charged with a misdemeanor criminal offense, a violation, a traffic violation or a municipal ordinance violation, expungement may be available under the following circumstances:
- The charge was dismissed with prejudice,
- The charge has been no billed by a grand jury,
- The person was found not guilty of the charge, or
- The charge was dismissed without prejudice more than two years ago, has not been refiled, and the person has not been convicted of any other felony or misdemeanor, any violation or a traffic violation, excluding minor traffic violations, during the previous two years.
If charged with a non-violent felony offense, expungement may be available in the following circumstances:
- The charge was dismissed with prejudice,
- The charge has been no-billed by a grand jury,
- The person was found not guilty,
- The charge was dismissed after successful completion of a drug court program, mental health court program, diversion program, veteran’s court, or any other court approved deferred prosecution program after one year from successful completion, or
- The charge was dismissed without prejudice more than five years ago, the charges have not been refiled and the defendant has not been convicted of any other felony or misdemeanor crime, any violation, or any traffic violation, excluding minor traffic violations, during the previous 5 years.
Violent crimes include, but are not limited to, capital murder, murder, manslaughter, assault, kidnapping, rape, sodomy, robbery, burglary, arson, stalking, sexual abuse and domestic violence 1 and 2.
If a person qualifies for expungement, the following must occur:
- A sworn statement that the person meets the expungement requirements;
- A case action summary or certified copy of arrest and disposition;
- A certified copy of the arrest record from the Alabama Criminal Justice Information Center;
- Description of the charges to be considered for removal and description of the agencies involved in the arrest and any incarceration;
- The filing fee is $300 plus any court costs;
- All court fees, restitutions, fines and fees have been paid
If the expungement is granted by the court for any arrest, “the proceedings regarding the charge shall be deemed never to have occurred,” and the court and other agencies are supposed to reply to any inquiry that “no record exists on the matter,” and the person shall not have to disclose the related facts on job or credit applications and other applications. There are several exceptions, including the disclosure to any government regulatory or licensing agency, any utility, any bank or other financial institution and any applicant for a position in law enforcement.
Practice pointer. This new law will allow potential employees to answer “no” to questions regarding arrests on employment applications if their records are expunged, except for those crimes excluded or jobs carved out in the statute. This should make it easier for employees with a history of non-violent criminal arrests to get a job in Alabama. Employers and employees must be aware that even though the court records may be expunged, there are is other publically available information that may disclose an arrest including media stories (TV, radio, newspapers, etc.) both in print and online and social media sites, such as YouTube and Facebook. Employers must be very careful when using criminal arrest and conviction records when hiring, firing and downsizing: the EEOC has been aggressively pursuing claims alleging disparate impact based on race and national origin.