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A Question Employers Can No Longer Ask

Effective, December 1, 2013, North Carolina Employers will no longer be allowed to ask potential employees about arrests, criminal charges, or convictions that have been expunged. A recent law which was passed by the North Carolina General Assembly prohibits questions regarding expunged matters both on applications and during interviews. What are expunged matters or records? Expunged records or matters generally include criminal charges which are destroyed or sealed from the state repository and are generally wiped clean from any criminal records of the individual charged. Interesting scenario, what will happen and how will the potential employee handle when a potential employer learns of a former criminal charge from another source and asks about it and then learns that the matter was expunged? Might be a tense moment with the potential employee.

The law was enacted “to clear the public record of any arrest, criminal charge, or conviction that has been expunged so that the person who is entitled to and obtains the expunction may omit reference to the charges or convictions to potential employees”. The law allows for an individual to withhold such information and protects he/she from disclosing the records from later use. Employers will still be allowed to ask about arrests, criminal charges, or convictions that have not been expunged and are part of the public record.

What is the penalty for violations of this law? The North Carolina Commissioner of Labor is authorized to investigate and issue a written warning for first time violators. After the written warning, violators may be liable for a civil penalty of up to $500.00 for each additional violation after receipt of the written warning. The law specifically provides that violations of the law cannot be the basis of a civil lawsuit against an employer that asks about expunged records. The amount of the penalty will be based on factors such as the size of the employer’s business, whether there is a record of previous violations, the good faith of the person and whether the person who committed the violation knew that his/ her conduct was prohibited.

About James Vann

James’ law practice concentrates on creditors’ rights, unmanned aircraft systems, business law and planning and succession, civil commercial litigation, estate planning and business succession planning. Through his family business, James learned at an early age the value of sound business judgment and values. When representing his clients, James strives to consider business and economic issues, as well as the legal issues.
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