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Not all types of criminal records remain in an individual’s background check forever. In some cases, a state’s “lookback period” will mean that certain charges eventually do not regularly appear in someone’s report. In other cases, though, individuals may actually be able to have certain kinds of criminal convictions and criminal charges removed or hidden from their records. These processes, called sealing and expungement, can be a confusing aspect of the screening process. If one of your candidates has received an expungement, do background checks reveal that information?
In most cases, the answer is no. To understand why, we must first look at the reasoning behind allowing the expungement of criminal records and how it works.
Expungement is a process offered to individuals whom a state has judged to be sufficiently rehabilitated or at low risk of re-offending after some years following the completion of a criminal sentence. Sealing is similar. This process aims to eliminate one of the biggest barriers someone with a conviction faces in acquiring employment and housing.
By petitioning the court to expunge a criminal conviction, a person asks the justice system to wipe that conviction from the public record. If the court grants the request, the record should cease to exist for all intents and purposes. Without a specific court order, no one can access or view expunged records again. It is as though the person never had a criminal record, and applicants do not have to disclose that they’ve engaged with such a process.
Sealing a criminal record is a slightly different process. Sealed records technically still exist within a state’s court records, but they are no longer part of the public record. A record under seal can only be accessed and reviewed through a formal court order authorizing someone to do so.
Many ex-offenders and employers alike ask when considering these processes whether these records can still appear on a criminal background check. As “Clean Slate” laws proliferate, it’s a question more and more people have.
What do employers see in background checks? In an ideal scenario, expunged or sealed records would not be reportable as part of any standard criminal background check. Individuals who seek to have their records sealed or expunged want to make a fresh start. Those eligible for expungement want to be able to enjoy the benefits that a clean criminal record provides. After all, when someone applies for a job after a record goes under seal or is expunged, they can truthfully say “No” whenever asked if they have been convicted of a crime. In fact, many states legally bar employers from making hiring decisions based on records expunged or sealed.
In other words, it’s actually better for hiring managers not to know this information. Unfortunately, the messy nature of public record systems and many reporting agencies means that’s not always possible. Just because a record is expunged or sealed from public view doesn’t always mean that all traces of it are gone. That is true in an official capacity, but in a world of computer systems maintained by humans, mistakes and oversights can happen. That means expunged and sealed records can sometimes appear on employer background checks. How?
After granting a petition for record expungement or sealing, Many courts or law enforcement agencies may only alter information within their own computer systems. A superior court may not fully inform the public of their order. As a result, it is possible for discrepancies to develop between the official record and what the public can access. The court might wipe out the conviction from its own records, but a record of the conviction could still exist in older criminal history databases maintained by third parties.
Without a national or centralized repository of criminal records, these databases are the go-to resource for most background check companies. It is, therefore, possible to see a sealed record or an expungement on a background check from time to time if the database used by a reporting agency is out of date. This is not uncommon because of the time it can take for states to update their information.
For employers, this potential for expungements to show up on background checks highlights the importance of following the Fair Credit Reporting Act’s adverse action guidelines. Remember that you must notify an applicant of your intent to take adverse action, provide them with a copy of the background check, and wait for clarification. An applicant may provide you with evidence that the record in question is now expunged or under seal. It is not legal for employers to deny a job based on these records.
At backgroundchecks.com, we operate a program called MyClearStart designed to help individuals through the process to expunge a record. If an individual has a conviction on their record, they can use MyClearStart to get a free evaluation on whether they might be eligible to have that conviction expunged, sealed, or otherwise removed from the public record.
Though employers shouldn’t see an expungement on background checks, it can happen—and we’re working to ensure that it happens less and less. If you are eligible and decide to go through the process, you can return to backgroundchecks.com when your petition for expungement is granted. We partner with The Foundation for Continuing Justice, which can help you ensure your expunged record is eradicated from hundreds of criminal history databases around the United States. We offer this service free of charge. Click here to learn more about the partnership.
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