In the current robust economic climate, employers are often faced with the inverse of the predicament they encountered only 10 years ago. In 2008, many businesses began drastically downsizing. Today, however, employers frequently find themselves asking, Where are the qualified applicants?
The South Carolina General Assembly, over a veto from Gov. Henry McMaster, recently passed a law aimed at widening that qualified applicant pool with the twin goals of expanding the state’s workforce and further reducing the unemployment rolls. House Bill 3209, passed June 27, 2018, with an effective date of Dec. 27, 2018, broadens the types of crimes eligible for permanent expungement and, in so doing, offers many low-level offenders a second chance at gainful employment.
For South Carolina employers, the revised law creates a new opportunity – but it also raises several new questions.
What is House Bill 3209?
Section 17-22-910 of the South Carolina Code allows a limited class of individuals to apply for the expungement of misdemeanor charges after a period of good behavior. The original statute permitted only the expungement of a first-offense, low-level crime that carried a jail sentence of 30 days or less. The revised statute significantly expands those conditions.
The new version removes the “first-offense” requirement. It also permits those with multiple convictions arising out of the same sentence hearing to seek expungement if the crimes are “closely connected.” Perhaps most importantly – given the law’s aim – individuals with simple drug possession, and even some distribution-level crimes, are now eligible. The law is also retroactive, so if an individual’s prior offense is now eligible for expungement, he or she can apply even if the crime is very old.
A deeper dive into the new law shows that expungement is based upon the charge that the individual pled guilty to or was convicted of, not necessarily the one with which they were charged. This may encourage more plea deals to lower-level charges. However, the expungement applicant must still wait a minimum of five years after conviction to apply, and must not have faced any additional charges in or out of state in the three years prior. Additionally, the applicant must not have pending criminal charges during the application process.
An overwhelming bipartisan majority of the General Assembly passed the bill, and it was backed by a large coalition of businesses, including nearly every major South Carolina chamber of commerce and the National Federation of Independent Businesses, all of whom presented it as a “jobs bill.” Recognizing that South Carolina competes with its neighbors, these groups likely also saw the writing on the wall, as many states and localities are passing so-called “ban the box” legislation. “Ban the box” laws essentially prohibit employers from asking about criminal records on a job application form. House Bill 3209 furthers this concept by allowing the individuals themselves to erase the convictions entirely.
Impact on Employers
Although House Bill 3209 offers a second chance to a much-expanded class of people, it also makes it challenging for employers to discover which of their applicants has a criminal record. And, even if a prospective employer discovers the now-expunged conviction (perhaps on the internet), the bill prohibits the use of that information in the hiring decision. Although the statute does not provide an express cause of action, discouraged applicants with reason to suspect their expunged record played a role in the hiring decision, will likely argue the new law creates an implied cause of action, thus violating South Carolina’s “public policy.”
Though this lack of knowledge (or the inability to use it) may unnerve some employers, the bill does afford some protection. Most importantly, employers are immune from liability for suits related to an employee’s expunged conviction, including administrative or civil suits. For example, a company should be immune from any negligent hiring or negligent retention suits related to the acts of an employee with an expunged record.
The bottom line is this: South Carolina employers should now refrain from asking employees about expunged offenses. If an applicant says “no” when asked about criminal convictions and the conviction has been expunged – but the employer persists – companies risk running afoul of the new law.
If you have any questions about the implications of House Bill 3209, or its potential impact on your hiring practices, contact any of Nexsen Pruet’s Employment and Labor law attorneys.