The criminal justice system serves many purposes to maintain a lawful, ordered society that strives to protect the vulnerable and punish wrongdoing. However, entering the justice system should not necessarily mean a lifetime of limited opportunities and difficulty following the completion of one's sentence. Unfortunately for the tens of millions of Americans who have past criminal records, those barriers and challenges are a fact of life. A criminal record, even for misdemeanor crimes, can mean fewer job offers, more difficulty securing a house or apartment to rent, and other problems. Criminal record expungement is one means of addressing these problems.
Across the nation, challenges related to ex-offenders have manifested as serious social problems that can keep recidivism rates high. The presence of criminal records in someone's past could even keep them out of positions for which they are otherwise well-qualified. Advocates for the formerly incarcerated have pushed for solutions to this problem for years. Over the last 20 years, a vigorous fairness movement arose. One of the biggest results has been the rise of "ban the box" laws which require employers and landlords to delay their background checks until they decide someone is otherwise suitable.
Even in locales where ban the box is in effect, records discovered later in the process can still be a disqualifying barrier. Advocates have often wondered if that is fair. Should someone lose out on an opportunity because of a prior conviction for simple marijuana possession or a minor theft charge from nearly a decade ago? Some say no, and a growing number of states have agreed that there should be more opportunities for rehabilitated offenders to integrate seamlessly into society. The result has been an expansion of opportunities for criminal record expungement. If you have ever wondered, "why do some convictions not show up on a background check?" the answer could be expungement. What is that?
"Sealing" or "expunging" a record refers to a formal process involving petitioning for a court order that directs law enforcement agencies to restrict access to the record, modify it, or otherwise destroy it. Sealing and expungement restrict who can see or access information about the criminal record in slightly different ways. Other status changes may limit how employers and others can access and consider criminal records.
Understanding the role of expungement in the background check process is vital for employers today. As you can see in our update on clean slate legislation, more jurisdictions continue to adopt these rules. Some employers even provide information about expungement opportunities to job applicants or those who receive an adverse action notice because of their records.
What do you as an employer need to know about the expungement of criminal records?
There is no “one size fits all” approach to the expungement process, and some states may not even allow for expungement in the first place. Because of this confusing patchwork of laws and requirements, employers may often have many questions to answer before they can have complete confidence in the legality and reliability of their background check procedure. For example, do expunged records show up on background checks, and if so, what must employers do with that information? What is the difference between an expungement and the sealing of criminal records?
Let's explore each category of records to lift the fog of confusion concerning what employers must consider most carefully about their vetting considerations.
For all intents and purposes, an expunged record does not exist. Besides narrow circumstances such as hiring for public safety-related positions (e.g., law enforcement) and those that require security clearances (such as some federal employment), an expunged record is unavailable to businesses and likely illegal to use for any employment purposes. In jurisdictions without “ban the box” rules, employers may ask prospective workers to disclose any prior criminal history before running a background check. If applicants have an expunged record, they can truthfully check the “no” box when asked if they've ever been convicted.
Sometimes, records successfully slated for expungement do not entirely disappear from all relevant databases. As a result, some criminal background checks may still report these items. These discrepancies and delays emphasize the serious importance of following the guidelines established by the Fair Credit Reporting Act. Under the FCRA, employers deciding that the background check information is disqualifying must provide a pre-adverse action notice and a copy of the report to the individual. This step, followed by a waiting period, allows the applicant to clarify or make corrections.
Imagine ignoring the waiting period and issuing an adverse action notice to an individual because of a felony you felt was disqualifying. What if that felony was expunged under the laws of your state or the state where the applicant previously lived? Your business now faces legal liability and the potential for a lawsuit or fines because of a lack of proper due diligence—and you potentially missed out on a talented individual because of hastiness. Because there is not yet a formal system between state governments to quickly share expungement data, many charges can and do slip through the cracks.
Taking your time in the process and allowing applicants their legally-mandated opportunity to explain their background check is more than just following the law—it's a critical step in avoiding a potential error.
Additionally, there are some state-specific scenarios that employers should understand. These include:
It is always important to review the specific rules and regulations within your state to understand what to expect and how to handle expunged records.
Sealed records differ slightly from expunged records in some jurisdictions. In some states, however, “expunged” and “sealed” may be used interchangeably. Verify the specifics in your state before you begin using background checks. What makes the sealing of criminal records different?
Expungement is a more permanent process that indicates some level of “forgiveness” for the crime in question. For example, in some states that undertook marijuana legalization, many minor cannabis convictions have undergone automatic expungement. These states believe that because the law has changed, prior convictions under the old rules should be no barrier to employment or housing today. That is why expungement processes treat the crime as if it never happened from a public perspective.
A “sealed” record, on the other hand, still exists. Some states do not require applicants to disclose their sealed convictions. In other cases, that's not so—you may not have to provide details about records under seal, but some types of employers may be able to see that such a record exists. Sealed records can still be unsealed, usually only by court order, and law enforcement agencies can usually see sealed records any time they view an individual's history. In short, expungement is permanent; sealing a criminal record is not. In both cases, employers should act with caution and preferably make decisions based on public records.
At times when you review a background check report, there may be other terms associated with criminal charges or convictions that give you pause. If you see that someone's prosecution was “deferred,” had charges dismissed, or had their records “discharged,” you may be concerned about expungement compliance issues. No business owner wants to make a potentially costly error in the vetting stage of the hiring process. These separate terms do not relate to criminal record expungement but rather to outcomes of a criminal charge or case that differ from “convicted” or “acquitted” and include:
Understanding the nuances of criminal records and background checks is key. Can employers consider this information when hiring? There is generally no hard rule that says employers cannot use this information, and terms such as deferred or dismissed may appear on a background check. However, as with arrests that did not lead to a conviction, employers should exercise care in basing any decisions on these circumstances.
Many states support and have endeavored to adopt a Clean Slate approach to hiring and vetting functions under their oversight. Currently, the following states have some support for expungement, ranging from individual petitions to the courts to automatic record-clearing laws.
Many states on this list are relatively new to the world of expungement, and pathways to expungement for minor crimes continue to expand. For example, even in a relatively conservative state such as Georgia, the state legislature passed an expungement bill that took effect in 2021. Alabama passed its first such law in 2021, opening the door to erasing the records of many with non-violent misdemeanors. Beginning at the end of 2022, Arizona adopted its first law to authorize any sealing or expungement. Maine enacted a four-year waiting period before allowing for sealing records that same year.
The facts are clear: the movement for expungement and fairness in hiring continues to grow, expanding rapidly. It is vital that employers stay abreast of Fair Chance and Clean Slate-related discussions in their state legislatures to remain aware of potential changes that could impact their hiring process. That can be true even in states that already have such laws, such as California. That state's enactment of an automatic expungement process means many more records could soon be off-limits.
Despite the best intentions behind this fresh wave of reform, employers must also be aware that some states continue to experience many problems with their new initiatives. Backlogs and vague guidelines continue to complicate efforts to complete the expungement process. It may take months or even years in California to reconcile incomplete records with actual related cases.
“Automatic” expungement, in that case, seems hardly automatic at all. In states where applicants must petition the courts to have their records expunged, confusion over what it takes to qualify and who meets the criteria has kept many eligible individuals from accessing their legal rights. For employers, there can be value in offering resources to job applicants that aid in broadening their opportunities. Not only does the public increasingly look favorably upon businesses that contribute to such rehabilitative efforts, but you could expand your own available pool of talent in the process. How?
The process of expunging a criminal record in many jurisdictions can be time-consuming, stressful, and very opaque for job seekers. Those faced with the difficulties of getting a job with prior criminal convictions on their record may not even know they are eligible for expungement in their area. A lack of knowledge about these opportunities can leave some people trapped in a cycle without any sense that they have an opportunity for a fresh start with a cleaner slate. Informing applicants about these opportunities—and offering a tip about where to begin—is a smart way to differentiate your business in an increasingly crowded marketplace.
In some states, individuals must petition the courts. They may have to pay court fees and even appear before a judge to explain why their expungement or sealing request should be granted. Other states have a comparatively simple paperwork process without needing a court date. Employers who help demystify this process and make it more accessible unlock multiple advantages. At backgroundchecks.com, we've developed an innovative tool providing expungement help for employers and potential employees alike.
With MyClearStart, you can position your brand on the right side of the “Clean Slate” movement and offer new opportunities at no cost to your company.
MyClearStart, a program provided by backgroundchecks.com in partnership with a prestigious law firm, enables individuals to discover their eligibility status for expungement with greater ease than ever before. This automated process collects key information from the applicant, including the state where they have a record, and provides an instant assessment.
If the individual is eligible for expungement, MyClearStart provides a simple, easy-to-follow guide on how to take the next steps toward earning a clean slate. Applicants see detailed information about what to expect, even including fee information. Through MyClearStart, applicants can opt to connect with and hire a qualified employment lawyer who will begin the expungement application process. Once successful, lawyers assigned through MyClearStart also make the necessary efforts to communicate with criminal history databases and consumer reporting agencies to remove the expunged records from any repositories.
MyClearStart comes at no cost to your business; all you have to do is provide information about it to your applicants and those you cannot hire due to their history. Choose to deliver bad news with a silver lining by helping individuals discover new legal opportunities, or include information about MyClearStart directly on your job application or your website's career page. Both approaches aid your business in standing out as a different, more conscientious employer – and it might even help you bring in talent you wouldn’t encounter otherwise.
As more communities aim to open doors with expungement assistance, your business can join in.