The New South Carolina Expungement
What’s an Employer to Do
For the last several years there has been a movement among various
states and cities to “Ban the Box”. Generally this
refers to employers who are prohibited from asking applicants
about their criminal conviction records on job applications.
This means that employers are allowed to ask the applicant about
possible criminal convictions only after the individual is selected
for an interview or given a conditional offer of employment.
South Carolina does not presently have a “Ban the Box” law.
The existing SC law permits persons to expunge a first offense,
low level crime which carries a sentence of 30 days or less from
their record after a period of good behavior. This changed on
May 18, 2018 when the South Carolina Legislature passed H3209.
On May 19, it was vetoed by the Governor. On June 27, the veto
was over ridden by the State legislature. It is effective on
December 27, 2018.
The new law removes the “first offense” requirement
and also allows individuals to erase multiple convictions arising
out of the same sentencing hearing if they are “closely
connected”. The law also allows offenders to expunge the
first offense crimes of simple drug possession and drug possession
with intent to distribute. The law also applies retroactively
to those offenses which were committed prior to the law’s
passage. Employers should be unable to discover the offenses
on any commercial criminal background check.
If an employer somehow becomes aware of an applicant’s
expunged offense, they may not use this information for the purpose
of making any employment related decision.
Please also remember that in 2012, the Federal Equal Employment
Opportunity Commission (EEOC) issued guidance on the use of criminal
records in employment decisions. The guidance document provides
several best practices and recommendations on the use of criminal
records by employers. Specifically, it recommends employers weigh
three factors when assessing whether the existence of a criminal
record is sufficient for job exclusion: (1) the nature and gravity
of the offence or conduct, (2) the time that has passed since
the offence or conduct last occurred and (3) the nature of the
offense as it relates to the job held or sought. The EEOC further
recommended in its guidance that employers conduct “targeted
assessments” and consider an “individualized assessment” where
appropriate. This individualized assessment involves the employer
speaking with the applicant, notifying them that they will not
be considered for the position based on the criminal history
and allowing the applicant to have the opportunity to explain
and provide further information.
A company’s best defense against
the potential expense and aggravation related to federal or state
law violations is to proactively review and revise as needed
all Human Resources policies, handbooks, hiring procedures, compensation,
benefits, training programs, communications tools and other functions.
The professionals of PHHR are ready to assist your organization
with this type of training as well as to maintain compliance
with the latest state and federal mandates.
Paul Hilton Human Resources Consulting works with our clients to insure that all required documentation is correct and sufficient to successfully defend against a claim to any unemployment compensation commission.
|For assistance with any Human Resources related questions or other
issues, please Contact Us.
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