MOORHEAD – A criminal record can be a tall hurdle for someone trying to find a job or a place to live. But a new law in Minnesota aims to help convicts have their records sealed from public view.
“It doesn’t mean that the records are destroyed or like it never happened,” said DJ Yokom, an attorney with Legal Services of Northwest Minnesota. “It just means that, for the purposes of employment and housing, the people doing background checks can’t see it.”
The new law, which went into effect this month, allows for the sealing of records, also known as expungement, in cases of juvenile offenses, misdemeanors and 50 types of low-level, nonviolent felonies, ranging from the commonplace, such as check fraud and carrying a handgun without a permit, to the obscure, like movie pirating and cattle rustling.
Yokom said he has numerous clients who may benefit from the law, which applies to convictions in Minnesota courts.
“I’m working on a case right now: A guy committed a crime in 1992, he hasn’t been in trouble in 18 years, and he can’t get a job,” Yokom said. “So, for the last 18 years, he’s been on public assistance.”
While this law may buoy some convicts, the notion that an employer could unwittingly hire a person with a criminal record concerns Andrew Rosen, president-elect of the Fargo-Moorhead Human Resources Association.
Rosen said many employers do background checks to avoid what’s known as negligent hiring. He gave the example of someone with a gun-related conviction who’s hired and then hurts a co-worker. It’s this sort of situation that could put an employer at risk for a lawsuit, he said.
But Rosen said he’s comforted knowing that convicts wanting to expunge their records have to show there isn’t a safety concern in keeping such information from the public.
“If something happens, (the new law) removes that risk from the employer,” he said. “Hopefully, the right decisions still get made.”
Closing the gap
Minnesota has had an expungement law on the books for years. But it only applied in cases of acquittals or dismissals. And judges could only seal records held by the court system – not those on file at the Minnesota Bureau of Criminal Apprehension, the main source of information for employment and housing background checks.
The new law closes this gap by sealing BCA and court records, said Josh Esmay, director of public policy and advocacy at the Minneapolis-based Council on Crime and Justice.
But even though judges now have broader legal footing to seal records, taking such a step is still considered an “extraordinary remedy” to be used only when someone is suffering an undue burden because of a conviction, Esmay said.
Convicts “need to show that they’re hurting, and they need to show that they’re rehabilitated,” said Esmay, whose group was one of several that lobbied for the law.
Before applying for expungements in petty misdemeanor or misdemeanor cases, convicts need to stay out of trouble for two years after completing their sentences. The waiting period is four years in gross misdemeanor cases and five years in felony cases.
Exactly how many convicts the new law will help isn’t clear. But in recent years, hundreds of people have requested expungements, many doing so without an attorney, Esmay said.
Under the new law, expungement seekers can file a petition with the court and appear before a judge to explain why sealing a record is appropriate. Victims and various government agencies have to be notified, so they can have a chance to object. Even if a record is expunged, law enforcement authorities will still have access to it.
The new law has a sunset clause that prevents domestic violence convictions from being expunged until July. Yokom said he expects the Legislature will extend that time frame.
Ban the Box
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Twenty-five percent of Americans have an arrest or conviction on their record, and most of those are nonviolent offenses, according to the National Employment Law Project.
To help this percentage of the population find work, Minnesota started requiring employers to wait until later in the hiring process, at the interview stage or after a job offer has been made, before asking applicants about their criminal records or doing background checks. This so-called Ban the Box law went into effect for public employers in 2009 and for private employers in 2014.
“All Ban the Box does is get people in the door,” Yokom said. “It just allows people to get that initial interview.”
During an interview, when a potential employer asks about past convictions, it’s debatable whether sealed records have to be disclosed.
The answer may depend on how the question is phrased, Esmay said.
For instance, if an employer asks, “Do you have a felony on your record?”
“That you might be able to say no to with a clean conscious,” he said. “But if you’re asked, ‘Have you ever been convicted of a felony?’ That’s a different question.”
