The Arizona legislature recently passed a law that will allow job seekers to hide certain crimes from potential employers.
Under A.R.S. § 13-911, Arizona residents who are arrested, convicted, or sentenced on or after December 31, 2022 may petition the court to have their criminal record sealed if:
- They were arrested but no charges were filed.
- They were charged but it was dismissed or resulted in a not guilty verdict.
- They were convicted but have completed all the terms of their sentence.
A person is eligible to petition for seal only if they have not re-offended and the waiting period of a certain number of years (depending on the type of offense) has passed.
Individuals are not eligible to have their records sealed if they were sentenced as a dangerous offender or convicted of certain crimes, including dangerous crimes against children, serious offenses or violent or aggravated felonies, offenses involving the use of a deadly weapon or the infliction of a serious physical injury, sex trafficking, and class 2, 3, 4, or 5 felonies.
If granted, the petitioner is allowed to state on employment, housing, and financial aid or loan applications that they have never been arrested for, charged with or convicted of the crime.
Section 13-911(I)(5) of the statute lists a number of specific exceptions to this where the type of offense relates to the type of employment sought. For example, if an individual’s sealed record involves burglary or theft, they must disclose it on an application for a job that involves performing services inside a residence. If an individual’s sealed record involves theft, forgery, or identity fraud, they must disclose it on an application for a job that involves handing financial assets. Additionally, all sealed records must be disclosed when applying to work in certain public sectors, including law enforcement.
Sealed records are not accessible by the public and will not show up on standard employment background checks.
The good news is that Arizona law also provides limited protections for Employers who hire an employee or independent contractor with a criminal record, whether sealed or unsealed. Under certain circumstances described in A.R.S. § 12-558.03, if an employer is sued for negligent hiring, evidence of the past conviction cannot be introduced against the employer. For negligent supervision claims, evidence of a prior conviction can be introduced only if the employer knew of the conviction or was grossly negligent in not knowing about the conviction, and the conviction was directly related both to the nature of the work and the conduct that gave rise to the claim.
If you have questions or want to ensure your background check procedures are complaint with Federal and Arizona law, please contact Cecilia Nieto at cecilia@burnsbarton.com, or your favorite BurnsBarton attorney.
