Clean Slate Laws are being enacted and expanded across the United States. These new rules either shield or expunge (erase) certain misdemeanor and felony convictions in a person’s past. The intent of the laws is to allow greater access to jobs and housing for people considered rehabilitated. For employers, the new laws may pose a challenge when making hiring decisions.
Currently, 12 states have enacted some form of Clean Slate Law: California, Colorado, Connecticut, Delaware , Michigan, Minnesota, New Jersey, New York, Pennsylvania, Oklahoma, Utah and Virginia. Advocacy groups are lobbying to add the remaining states. At the federal level, Congress introduced a similar bill for consideration in 2023.
Clean Slate versus Ban the Box
To date, 37 states and over 150 local authorities have enacted ‘Ban the Box’ laws which prohibit employers from asking an applicant about any criminal convictions before a conditional offer of employment is made. If there is a history of convictions, the employer is required to weigh the nature and severity of the offense(s) against the risk and requirements of the job. Employers are encouraged to favor the applicant, if possible, to provide better access for employment.
Clean Slate Laws go further, erasing certain misdemeanor and felony convictions entirely. Applicants will not have to divulge the information: employers will have no access to check. Except for certain types of convictions and in specific industries, like law enforcement, the record will be wiped clean.
Clean Slate Law details
California’s Clean Slate Act went into effect January 1, 2023. It applies to convictions and arrests after January 1, 1973. Automatic removal of records is available for some felony crimes, even those that resulted in a prison sentence. Others that are eligible:
- Arrested but not convicted, or case dismissed – records sealed automatically
- Most state felony convictions automatically sealed four years after the case ends
- Felony arrests that did not lead to charges sealed after three years: does not apply to serious, violent, or sex offender charges
- Misdemeanors sealed after one year if no new charges are brought
- Allows for the withdrawl of guilty or no contest plea for most felony convictions that may have the case dismissed under certain conditions
- Convictions with probation cleared when the case closes
Convictions that cannot be expunged:
- Child pornography convictions
- Some sexual assault convictions
- Committing lewd acts with a minor
- Failing to submit to a police inspection of vehicle
- Persons on parole or who are required to register as a sex offender
Residents can even use technology to remove themselves from criminal record databases. In California, penalties assessed against driving privileges cannot be expunged. Fingerprint-based records, which are run through federal databases, cannot be erased.
New York Clean Slate Act details
In November 2023, Governor Kathy Hochul signed the Clean Slate Act, amending its Fair Chance Act of 2021 The law automatically seals misdemeanor convictions after three years and felony convictions after seven.
In New York only private and public sector employers who cannot legally hire employees with a criminal conviction will have access to these records. This would include law enforcement and other industries, such as home health and elder care, that are required to conduct a fingerprint-based background check.
Most misdemeanor and felony convictions are included under the law, except:
- Violent felony
- Class A felony
- Homicide
- Sex offenses
- Possessing child pornography
- Felonious attempt or conspiracy to commit any ineligible offense
Michigan Clean Slate Law details
Michigan Bills 4219 and 4220 expunged the records of over 1 million residents in April 2023. The law allows removal of records for misdemeanors punishable by less than 93 days in prison after 7 years with no limit on the amount of convictions. For 4 or fewer misdemeanor offenses punishable by more than 93 days, records are expunged after 7 years.
The new law also makes multiple offenses that occurred around one incident a single crime, with the exclusion of violent crimes or those punishable by 10 years or more. Convictions may also be eligible for petitioned expungement – these include:
- A single DUI (driving under the influence) 5 years after the completion of sentence: multiple DUI convictions are not eligible.
- Marijuana-related convictions that would have been legal under the state’s 2018 marijuana laws.
- For 2 or fewer felonies, automatic expungement occurs after 10 years.
Non-eligible offenses include:
- Violent crimes
- Crimes involving minors or vulnerable adults
- Sex crimes
- Traffic convictions under a commercial driver’s license (CDL)
- Traffic convictions that resulted in injury or death
- Out-of-state or federal convictions
Pennsylvania Clean Slate details
In December 2023 Pennsylvania began to seal felony convictions after 10 years. Misdemeanors convictions are sealed after 7 and summary offenses after 5. The state anticipates most drug and theft-related felonies will be eligible.
Although misdemeanors are included in the legislation, those that involve violence or firearms are not eligible. Assault, kidnapping, sexual offenses, and crimes involving minors typically are ineligible. Even an eligible misdemeanor conviction may remain unsealed, under the law, if the resident’s personal history disqualifies them. Considered for disqualification are:
- Additional convictions within the last decade
- A first-degree felony conviction
- 2 or more misdemeanor or felony offenses within the last 15 years
- 4 or more convictions within the last 20 years
As more states and the federal government consider Clean Slate legislation, it will be important for employers to understand their rights and responsibilities under these laws. For businesses whose employees pose a risk to the organization or its customers, navigating these new regulations may be challenging.