Employing people with a past

How the clean slate legislation works

Employing staff is never a simple process. Finding people with the right skills and personality to fit into your team can be challenging. Today’s employers go through a rigorous process when recruiting; most believe it’s better to put time into getting the right person than to have to deal with the consequences if things don’t work out.

One aspect of all staff recruitment is background checks on applicants. This is more important in some roles than others.

It’s standard to ask prospective employees to submit forms, and provide CVs and evidence of qualifications. Many employers also include a question regarding past criminal convictions, but this is not a surefire way of getting the full picture of an applicant’s background. Job applicants are not required to declare convictions in certain situations as they are ‘clean-slated’.

Being ‘clean-slated’

The Clean Slate Act or clean slate scheme, more formally and correctly known as the Criminal Records (Clean Slate) Act 2004, became law almost 15 years ago. Its purpose was to limit the effects of historic criminal convictions on a person’s future.

The Clean Slate Act limits the effect of convictions if certain criteria are satisfied. If it has been seven years since someone was convicted, they are considered to have no criminal record in certain situations.

For anyone to be ‘clean-slated’, they must have:

• No convictions within the last seven years
• Never been sentenced to a custodial sentence
• Never been convicted of a specified offence such as sexual offending against young children
• Paid any fine, compensation, reparation or other monetary penalty ordered by a court following a criminal case
• Never been indefinitely banned from driving, and
• Never been held in hospital by the court in a criminal case due to their mental state.

Those who meet the above criteria are entitled, when completing a job application, to state they have no criminal convictions. Section 14 of the Clean Slate Act expressly states that when asked, a person can state they have no criminal record if they are eligible under the legislation.

The application of the Clean Slate Act is automatic (there is no application process) and, once ‘clean-slated’, a criminal record will show a clear history.

Employers should be aware that it is an offence to require someone to declare convictions that have been subject to the Clean Slate Act. Any person who disregards the effect of the scheme and requests disclosure of ‘clean slate’ convictions can be fined up to $10,000.

Obviously, employers are entitled to ask candidates to declare a conviction that is not subject to the Clean Slate Act.

One difficulty that can arise for employers is if the role requires their employee to travel overseas. Immigration authorities in other jurisdictions are not required to adhere to New Zealand law and can ask for all convictions to be declared. Visas may be declined if there is a criminal conviction, however minor.

Exceptions

There are a number of exceptions in the clean slate regime. Anyone eligible under the Clean Slate Act to have conviction/s ‘removed’, must still declare all convictions if applying apply for a job in a national security role as a police employee, prison or probation officer or security officer, or as a judge, Justice of the Peace or community magistrate.

Employers who are concerned about previous criminal offences should remember it is not an offence for employers to carry out background checks on google and social media. Information about a prospective employee’s past can often be found through these channels. Job applicants can’t escape the reach of the internet.

The clean slate legislation was established to allow people to have a second chance. In the majority of jobs, historic convictions from over seven years ago are not a barrier to employment, and people have moved on from their mistakes of the past.

To talk to us about any business issues, contact a member of our employment team or  business law team.

Disclaimer: All the information published in Commercial eSpeaking articles is true and accurate to the best of the author’s knowledge. It should not be substituted for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are the views of the authors individually and do not necessarily reflect the view of this firm. Articles appearing in Commecial eSpeaking may be reproduced with prior approval from the editor and credit being given to the source. 

Content Copyright © NZ LAW Limited, 2019. Editor Adrienne Olsen, e. adrienne@adroite.co.nz  p. 029 286 3650