What Employers Need to Know About Expungement

If your business has a criminal background check policy in place to screen prospective employees then you need to be aware of the basics of expungement. Expunged criminal records cannot influence an employment decision in any way. In fact, if a record has been expunged, it isn’t supposed to appear on a background check at all. However, the expungement process doesn’t always wipe away all traces of a criminal record, which can make matters complicated for employers.

Here are answers to some of the most frequently asked questions about criminal expungement, from what it is to who is eligible and beyond.

What is criminal record expungement? Ex-offenders can petition the courts for expungement of their criminal records. Here’s an example: A person has a petty theft conviction on his record dating back 10 years. He is a one-time offender and has had a completely clean record since, but is still losing job offers due to background check findings. This person might apply for expungement. If the court approves his application, then the conviction is essentially wiped off his record as if it never existed at all. In many jurisdictions, courts even order expunged criminal records to be destroyed.

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How might expungement affect the application process? Many employers still have a question on their job applications that asks something like, “Have you ever been convicted of a crime?” Someone with an expunged record can legally and honestly answer “No” to that query — even though he or she technically was convicted of a crime. Expungement wipes the person’s slate clean.

What is the difference between expunging a criminal record and sealing one? For the most part, sealing a criminal record has the same effect for a person as expunging one. These terms are often used interchangeably. With that said,the terms are a bit different in most cases. If someone has her criminal record sealed, that means that it cannot be accessed by normal means. It is no longer public record, and shouldn’t come up on background checks. As with expungement, applicants who have had their criminal records sealed can legally and honestly deny the convictions when queried. Often, individuals with juvenile offenses have their records sealed so that they can start their adult lives with a virtually blank slate.

Unlike with expungement, though, the criminal record is still there and can be accessed by certain entities. It has not been destroyed completely. To access a sealed record, someone would have to obtain a court order — a step usually not possible unless public safety or national security is involved.

There are some jurisdictions in which expunging and sealing a record are essentially the same thing. While certain courts will order that expunged records be destroyed, others simply remove relevant information from the public record and restrict access to the files. In such situations, there isn’t a meaningful distinction between an expunged criminal record and a sealed one.

Who is eligible for expungement? The answer to this question will vary from one state to the next. The vast majority of states allow citizens to submit motions for criminal record expungement. Not all states observe the same policies for expunging or sealing records. Eligibility requirements can differ significantly depending on the state. To check what the requirements are in your state, use MyClearStart.com. The site lets you select a state and read about its laws and policies on expungement and record sealing.

Usually, a state will have a list of criminal convictions that are not eligible for expungement under any circumstance. This list typically includes offenses like murder, rape, sexual assault, child pornography and certain weapons charges.

Even if a person’s criminal conviction is eligible for expungement, there are usually several other requirements that person must meet for their motion to be granted. For instance, there must be a waiting period between when the offense occurred and when the individual seeks expungement. A person can’t apply for expungement a year after being convicted of a crime, though waiting times do vary from state to state.

The individual must also:

  • Have a clean record for the entire waiting period, with no additional criminal activity
  • Have fulfilled all conditions of the sentencing for the original crime
  • Have no criminal charges pending against them
  • Have completed probation without incident

A person applying for an expungement must not have more than a specified number of previous criminal infractions. An individual applying for expungement of a crime will likely be denied if that person was convicted of half a dozen other offenses before that crime took place. The court looks for patterns of repeat criminal activity when deciding whether to grant a motion. As such, the people who are eligible for expungement are usually one- or two-time offenders.

Why do I need to worry about expungement if expunged convictions won’t show up on background checks? This question is a big one for most employers. After all, if expungement eliminates convictions from the public record, then they won’t come up on background checks, right? Unfortunately, this assumption isn’t always true. As criminal records have gone digital, it’s become more difficult for courts to seal or expunge them completely. The result is that background checks will sometimes turn up convictions that have technically been expunged.

Because employers are not allowed to consider expunged convictions when deciding whether to hire someone, this issue creates a potential legal concern for businesses. You could be legally liable if you disqualify a candidate based on information you should never have seen.

To avoid legal concerns, your business or your staffing suppliers should do three things.

  1. Educate yourself on expungement law in your state so you know which convictions can and cannot be expunged.
  2. Ask your background check company if they are using the Expungement Clearinghouse. This clearinghouse helps consumers remove their expunged criminal records from databases and helps consumer reporting agencies (as well as the companies that operate consumer information databases) make sure their information is up-to-date.
  3. Make sure you are following the Fair Credit Reporting Act. Under the FCRA, you must give applicants a chance to dispute background check findings if those findings result in adverse employment action. By complying with this requirement, you give applicants a chance to dispute your decision and present proof that the conviction in question was expunged or sealed.

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Michael Klazema

Michael Klazema
Michael Klazema has been developing products for the background screening industry since 2009 and is lead author and editor for a background checks community.

Michael Klazema

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