Approximately one-third of the American population has an arrest record or a criminal record.
If they could, most of these people would delete their records. This is where the process of expungement comes in.
What are Expunged Records?
Basically, expunged records are ones that no longer legally exist.
In theory, having a record expunged means that it is deleted from all publically accessible databases or court files. The specifics depend on the state laws, but generally, charges, arrests, and minor convictions are all legally eligible to be expunged.
Note: Having a record expunged is slightly different than having it sealed. Expunged means
to have it deleted, sealed means that it is no longer on the public record but it still exists.
How Does an Expunged Record End Up in a Background Report?
When you request a pre-employment background check, the report shouldn’t contain information from an expunged or sealed criminal record, but sometimes it does.
Unfortunately, when a criminal record is expunged it doesn’t just magically disappear like it should. Copies of that record are still in numerous private and public databases.
When AIS, or any background checking company, request information, they receive it from a variety of sources. If a conviction appears in one database but not another it could be because the record has been expunged or it could be because the data is incorrect.
The difficulty is that your background checking agency must report everything they find on public record, in their background report. For example, if the county hasn’t deleted an expunged record of your potential candidate yet, it will show up in the background check report for that individual.
What happens if an expunged record does show up in the background report?
Luckily, having an expunged record show up in a background check is rare. But, as with all background checks, if you choose to take adverse action against the individual, ie not offer them the job because of the contents of the background check, then you must send them a pre-adverse action letter that includes the background report and a summary of their rights.
This allows the candidate an opportunity to dispute the results, as they should if the record was expunged.
If a candidate disputes the findings in their background check the agency that produced the report has 30 days to redo the check. But, if the county still has that expunged record on file during the second check, the agency must report it again.
At this point, it becomes the responsibility of the candidate vying for the position. To prove that the record has been expunged, they must go to a judge to get a certificate of disposition and a record of expungement to give to the background checking agency. The agency will then verify the documents with a judge and update the background report. They will also send the documents to the county, forcing the county to update their records.
Expunged records shouldn’t show up on a background check because legally they don’t exist. But sometimes they do. In these cases, it is even more important to have a reputable background checking agency, with a history of good candidate experience, as your trusted partner. They can help to ensure you don’t lose the best candidate because of an expunged record.