Do Expunged Records Show Up on Background Checks?

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When running a criminal record check on a potential employee, volunteer or contractor, you want to learn as much about them as possible. The contents of a criminal record can determine what positions an applicant can fill, or if they can secure a position at all. It makes sense that you want the most comprehensive information as you can find. This will of course help you make the best decisions for your organization. However, not all records are public. Under some circumstances, people can have criminal records sealed or expunged.  But do expunged records show up on background checks? Expunged charges are erased from the record entirely, and sealed records still exist but are inaccessible to the public.

Generally, sealed and expunged records will not appear on a background check. With the help of One Source, you can still make informed decisions about your applicants without sealed or expunged records. Here, we’ll explain what it means to get a record expunged or sealed. We’ll also discuss why those records won’t show up on a report and how you can maintain ethics while onboarding.

What does it mean to get records expunged or sealed?

After a person is convicted with a crime, they may ask the court to remove that conviction from public record. If the court grants a request to expunge a conviction or arrest, all records of the event are completely erased. If the court decides to seal a record, then the record still exists, but it can only be accessed with a court order.

People try to remove records to get a fresh start after a difficult time or to move past a mistake. Requests to erase or seal a record is reviewed by a court. If passed, the records disappear to reinforce their commitment to starting over. This demonstrates that an outside party believes this person deserves a clean record.

Why don’t erased or sealed records show up in reports?

It is unethical for background check agencies to report on convictions that have been purposefully erased. This is why expunged records don’t show up on background checks. Individuals usually earn the right to get their records cleared, so it’s not fair to report on crimes that the court deemed erasable.

Just because it’s unethical to report on hidden records doesn’t mean it never happens, however. Courts will clear a record in their official system, but that record may still remain in the databases of some consumer reporting agencies. This means an erased record could result in a screening report on accident, which could harm an applicant’s chance of being onboarded.

At One Source, we search real-time criminal records directly from the courts. This means we provide you the most current information on an individual or record. We want to give you the best understanding of who is applying for your organization while respecting the wishes of the court and the applicant. Sifting through criminal records can be tricky and pose ethical issues, but One Source has your back and will help you make the best choices. We can help you put together a screening plan that’s right for your organization—contact our Client Relations team today.

As always, if an applicant identifies information in their report which they believe is inaccurate or incomplete, they have the right to dispute the information on their report. Learn more about the dispute process with One Source here.

Ban the Box Updates: What Employers Need to Know

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This article was originally published in June 2022. Updated November 2023.

By now, most HR professionals and hiring managers have heard of Ban the Box and the legislation that’s sweeping the nation. So, what are you doing to prepare for these changes? Are you confident that your onboarding process is up to date and compliant with the laws in place? Here we will help guide you in the direction to make sure your team is prepared for what is to come.

What are Ban the Box Laws?

In simplest terms, Ban the Box means that employers cannot ask on a job application or in certain parts of the hiring process about criminal history. For example, blanket statements like, “have you ever been convicted of a crime.”

These laws aim to put employers’ focus on applicants’ qualifications first, without blanket no-hire policies due to past criminal activity. In most cases, employers must wait until a conditional offer of employment is extended before asking about criminal history or conducting a background check.

On December 20, 2021, Congress enacted the Fair Chance Act. The purpose of the act is to give previous offenders a chance to find work in the United States Federal Government. The Fair Chance Act will “Ban the Box” asking about arrest and conviction history on job applicants for most Federal agencies and contractors. These questions and the background check cannot be started until the conditional job offer has been extended.

What steps can you take to be compliant?

Navigating Ban the Box laws can be confusing. We recommend, as a first step, consulting with your legal counsel. They’ll be able to look at your company profile, industry, and location to see what Ban the Box laws apply to you.

You’ll want to take that information and then review your job descriptions and applications. You’ll also want to be sure your hiring managers only ask about the criminal history during the correct time in the hiring process.

Whether these laws will apply to your organization depends on several factors:

  • Company size
  • Location(s) you hire in (city, county, and state)
  • Industry (different regulations can apply to education, childcare, health care, law enforcement, etc.)
  • Public vs private employer

Currently, 37 states and over 150 cities and counties have adopted similar laws.

While public employers appear to be moving to Ban the Box quicker than private employers, the lists continue to grow.

Currently, 15 states have Ban the Box laws in place for private employers. These include:

California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

Furthermore, over 20 cities and counties have Ban the Box laws in place for private employers. Some of these include:

Austin, TX; Baltimore, MD; Buffalo, NY; Chicago, IL; Columbia, MO; DeSoto, TX; District of Columbia; Kansas City, MO; Los Angeles, CA; Montgomery County, MD; New York­, NY; Philadelphia, PA; Portland, OR; Prince George’s County, MD; Rochester, NY; San Francisco, CA; Seattle, WA; Spokane, WA; St. Louis, MO; Suffolk County, NY; Waterloo, IA; and Westchester County, NY.

Check out the National Employment Law Project’s (NELP) detailed chart to see whether your city, county, or state has a policy or law.

What’s next?

It’s important to remember that background checks are still a crucial part of the hiring process. Not even the Federal Government, which has adopted Ban the Box entirely, is removing background screening from their hiring process. The safety of your employees, customers, and your organization’s reputation is still essential.

As these laws continue to sweep the country, it’s always best practice to ensure that your background check process is updated. Then, when it’s time to run the background check after a conditional job offer, you can keep things moving quickly.

One Source always recommends reviewing these five areas:

  • Background Check Policy
  • Disclosure
  • Authorization
  • Quality of Data
  • Adverse Action

Reach out to our team if you have any questions on ways you can follow compliance laws and regulations. Or you can learn more about how to stay compliant through our blog, Blueprint to a Compliant Background Check Process.