2023 Clean Slate Law Update Roundup

Latest Clean Slate Law Expansion & What Employers Must Know

Tens of millions of Americans have a criminal record. That number continues to grow as incarceration rates remain high. Even with such prevalence, a widespread stigma remains—creating many barriers. Those with records may struggle to find housing or, especially, employment. Today, an evolution of the “ban the box” movement has emerged and gained rapid acceptance: the Clean Slate law.

Employers should not categorically deny applicants based solely on a criminal record. Still, in practice, a record remains a serious barrier to employment. Many employers still find ways to disqualify candidates without specifically citing their records. For legislators, the ongoing issue was clear. Ban the box rules that delayed background checks might not go far enough. Their solution: stop employers from ever seeing the records in the first place with new background check legislation.

Today, more than half of the United States practice some form of “Clean Slate” law. Here, we’ll examine the purpose of these laws and their function. We’ll also explore the landscape of legislation after a busy 2023 session and consider some critical takeaways for employers. Here’s what to know.

What are Clean Slate Laws? What Do They Do?

A “clean slate” law is what its name implies. These laws give people with a criminal record a fresh start or a clean slate. After meeting specific criteria, someone with a criminal record can seal or expunge their convictions. Under seal, only some groups—like law enforcement—can see someone has a record. Under expungement, the record functionally ceases to exist.

Many states offer some pathways toward record-clearing for minor misdemeanor crimes. Some also allow for expunging specified felony convictions. The criteria for qualifying differs from place to place. In general, individuals aren’t eligible for expungement until several years after the end of their sentence. For example, someone might need to wait three years to apply for misdemeanor expungement. Time served is zeroed as soon as someone commits another crime during this period.

Why have so many states decided to offer these options? There is no federal background check regulation on how far into the past checks can report convictions. Only a portion of the states limit reporting based on time. A serious conviction could potentially follow someone for life.

Fairness advocates and legislators alike question whether a decades-old misdemeanor conviction should still be a barrier to a job in the present. Today’s laws are an effort to reduce those barriers and increase job opportunities for rehabilitated individuals.

The State of Clean Slate Laws Across the Country

Many states currently make expungement available in one form or another. Some states have a burdensome process that requires petitioning the courts. However, automatic expungement is the trend of the day. As of 2024, 26 states and Washington, D.C., have provisions for automatically deleting some criminal records.

Under these laws, individuals who meet specific criteria don’t have to take any prescribed actions. Instead, the state uses its procedures to expunge or seal those records automatically. Most crimes eligible for automatic expungement are basic misdemeanors and some low-level felonies. Sex offenses, excessively violent crimes, and some other offense categories usually aren’t eligible for such action.

The following states allow or will allow some form of automatic expungement:

• Alaska
• California
• Colorado
• Connecticut
• Delaware
• Illinois
• Indiana
• Kentucky
• Maryland
• Massachusetts
• Michigan
• Minnesota
• Missouri
• Nebraska
• New York
• New Hampshire
• New Jersey
• New Mexico
• North Carolina
• Pennsylvania
• Rhode Island
• South Carolina
• South Dakota
• Utah
• Vermont
• Virginia

Of these states, several are new to the list or made changes in 2023. Connecticut and California both began automatic expungements on January 1, 2023. Connecticut has struggled with program implementation and currently has only automatically expunged marijuana-related convictions.

Utah created a petition-based process for more offense categories, supplementing its automatic program. Similarly, Washington, D.C.’s law, enforced in 2023, is also a petition-based process. Idaho began allowing for petition-based expungement on January 1, 2024. Late in 2024, around November, New York State will commence automatic expungement for misdemeanors and some felonies. Virginia’s law will not go into effect until July 1, 2025.

Employers must abide by the rules for hiring in the states where they operate. With criteria that differ from state to state, reviewing the laws specific to your area is essential. Always consult a local employment attorney to evaluate your vetting procedures for proper background check compliance.

What Employers in Clean Slate Jurisdictions Will Experience

Clean slate laws, especially those with automatic triggers, can impact what you see on background checks. Some employers may have years of experience in evaluating screening reports. They may have expectations surrounding how many criminal record hits the hiring process generates. Clean slate laws have the practical effect of reducing the number of records you see.

Clean Slate Laws Don’t Defeat the Purpose of Background Checks

While you may not receive as much information from background checks, it doesn’t reduce their value. In some ways, clean slate rules make vetting even more valuable. Legislators carefully considered which crimes to make eligible for expungement. Remember, these convictions may range from three to seven years or more and may not have factored into your decision after all.

However, the most severe crimes still appear on reports, even in clean-slate areas. Sex offenses are universally excluded from expungement. People typically can’t erase their DUI records, either. Violent felonies and other serious crimes will remain on a person’s record. Background checks remain a vital element of your due diligence.

Maintaining Safe Hiring in Clean Slate Areas

What’s next when a candidate’s background check reports no adverse records? In “clean slate” states, you can’t know if someone once had a record. You shouldn’t overlook the importance of other tools for supporting smart hiring. Rely on verifying other information about the applicant. Verify employment history and consult with references. Confirm educational credentials and check licenses where appropriate. These tools all provide opportunities to learn more before making a decision.

Another essential item for employers is respecting candidates’ rights. You cannot ask applicants to disclose if they have expunged records. Likewise, you should clarify that they do not have to reveal the presence of such records. Juvenile court cases, for example, often go under seal after age 18. Be transparent about the information you can seek under the law.

What Do Future Legislative Sessions Have in Store?

States continue to adjust their laws. In 2023, states passed 36 laws establishing new expungement programs or extending existing ones. Legislators may continue to explore adding new types of convictions to the eligibility list. Other states may also take up their version of a clean slate law. Employers should monitor for legislative changes affecting their hiring processes in the coming years. Background check compliance and regulation issues shift and change annually, so be aware of what impacts you.

Prepare Your Business for Tomorrow’s Regulatory Landscape

Although the pace of passage for new Clean Slate laws slowed in 2023, that may not remain true. Legislators across the nation continue to show an interest in broadening job opportunities. While 27 states now have automatic expungement, others still have burdensome processes. Lawmakers may soon revamp those rules, too.

For employers, understanding the consequences of Clean Slate laws is vital. You must focus on developing robust procedures to screen candidates thoroughly. Criminal background checks still have an essential role—but they may not always show as many results as they did in the past. Review your policies today and explore how best to position your business for safe, successful hiring.