The New South Carolina Expungement Law:
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.

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Paul Hilton is a certified Human Resources Consultant, located in Columbia, SC.
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