South Carolina recently enacted legislation to amend its current criminal history expungement laws, which work to allow individuals with certain criminal convictions to have the conviction completely removed from their criminal history after a certain period of time has passed, assuming the person was not convicted of any additional crimes.
Significant changes brought about with this law include:
- Adding several crimes to the list of those qualifying for expungement, such as most minor offenses and first offenses for certain unlawful drug possession crimes;
- Shortening the time-passed requirement for expunging youthful offender convictions from 15 years after a conviction to 5 years; and
- Extending qualification to those with convictions prior to June 2, 2010, that would have qualified to receive youthful offender status but were not afforded the opportunity because this option was not yet available in South Carolina.
The law makes clear that employers cannot use any information related to an expunged conviction against an employee or applicant, regardless of how that information was obtained. This means that an employer can’t legally refuse to hire an applicant due to consideration of an expunged conviction that the applicant has self-reported or that the employer otherwise discovered.
While this policy may initially cause alarm for some employers, they can take comfort in knowing that the law provides them with protection under a provision that forbids the use of evidence involving expunged convictions in legal proceedings against the employer. For example, a plaintiff will not be able to prove a claim of negligent hiring against an employer for hiring someone with a conviction if that conviction has been expunged.
This law will go into effect on December 27, 2018. Anyone who meets the criteria for expungement can take advantage of the updated law, regardless of when the criminal conviction occurred. Because this law is retroactive, even records that are 20+ years old may start to disappear at the end of this year. Employers should take note that if a new background check is ordered for an employee or applicant who was previously screened, any convictions that were listed on the prior report and later expunged will not be included in the new report.
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