Employers Granted Certain Protections

A new West Virginia law allowing for certain criminal offense reductions contains provisions affecting employers. Highlights of the law are presented below.

Criminal Offense Reductions and Employment
A person convicted of a nonviolent felony offense may seek a criminal offense reduction by petition to the circuit court. If granted, the petitioner's felony conviction will be vacated and the petitioner's status will thereafter be designated on all records relating to the offense as a "reduced misdemeanor." The petitioner's criminal record will also reflect that he or she is granted such legal status as is associated with being convicted of a misdemeanor, and the person generally will not be deemed to have been convicted of a felony for any legal purpose or restriction.

However, the law may not be construed to allow a person obtaining relief under the law to be eligible for reinstatement of any retirement or employment benefit which he or she lost or forfeited due to the felony conviction(s) vacated and reduced to the status of a misdemeanor.

Additionally, upon the granting of a criminal offense reduction, the person whose felony offense has been reduced under the law does not have to disclose the fact of the record (or any matter relating to it) on an application for employment that he or she has a felony conviction.

Employer Protections
A cause of action may not be brought against an employer, general contractor, premises owner, or other third party solely based on such entity employing a person or independent contractor who has been convicted of a nonviolent, nonsexual offense, or a person who has had his or her conviction reduced under the law. (However, the law does not preclude any existing cause of action for failure of an employer or other person to provide adequate supervision of an employee or independent contractor.)

Note: The law may not be interpreted as implying that a cause of action exists for negligent hiring of a person based upon his or her criminal record in factual situations not covered by the provisions of the law.

Additional details are contained in the text of the law. According to the text, the law passed April 8, 2017 and takes effect 90 days from passage.

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