CONVICTED? NEVER CONVICTED.

Note: This article was originally posted in 2014. It has been updated with new information.

Owning a business investigation company we often had clients who would come to us to perform self-background checks. They had had an indiscretion long ago and wondered if it would appear during an employment background check. Or they had records expunged and wanted to make sure that searches would not reveal the records. Every now and then we would find records that the client swore had been expunged.

The search techniques used and the diligence of the background check company can often uncover records thought to be vaporized by the delete key. As records become more digitized it is increasingly more difficult to erase yourself from the digital world. Just like the picture from a sophomore year party that a friend posted on your favorite social media page, once it’s out there-it’s out there. Removing it can be difficult and time-consuming.

EXPUNGED?

Similar to those unwanted pictures, records of your past, even expunged records, can be found in the digital world. The legal term “expunged” has different definitions in different States. Some allow for the records to be sealed and treat the case as it never happened. Some change the conviction to “dismissed” but the other details of the case are the same. In Maryland, it means to remove from public inspection. Although records are expunged, they are filed somewhere.  

Once you receive an order to have your record expunged and it is served, the judicial system possessing the record will remove it from its online court access. Anyone searching your name would not see the record. Contrary to what the fast working TV detectives would have us believe, there is not one government sourced database of criminal records. Records of arrests and adjudications are kept at the local courthouses and county jurisdictions. The closest to any semblance of a national database is the FBI’s fingerprint database, to which only law enforcement has access. See “National” record checks  Third-party vendors must rely on court reported data offered by State and local governments. 

As with your personal information and shopping habits, court data is downloaded, bought, and sold every day. Vendors collect the data from several sources. As the data is shared and stored and stored again it ends up in narrower access points allowing for the production of a single report.  If the vendor then resells that report, the record moves to another database. You get the idea. Just like the unwanted picture, although expunged from the government files, your record is sitting in who knows how many vendors databases waiting to be accessed.  

REMOVING THE RECORD 

The criminal record you had expunged was downloaded, bought, shared, compiled, stored, all the digital speak long before the record was expunged. The best, and least expensive, way to rid the record from existence is to deal with the source vendor directly. Most companies that deal with personal information are forthright about the data that they dispense and pride themselves on the accuracy, which means they are more than willing to help. Sending them a copy of the expungement order along with a request to have the record removed usually will suffice. The problem is finding all the places where the record is stored. This can be a tedious and long process for the individual. There are companies that will chase the record and do the work for you, but of course, fees are involved.

DISCLOSURE

Cities and states throughout the U.S. have enacted laws banning the criminal history question from employment applications. See Ban the Box 

In October 2018, a Massachusetts criminal justice reform bill went into effect that included further Ban the Box regulation. The new regulations include disclosure of misdemeanor convictions for three years (Previously was five). Also, employers cannot inquire about expunged records. Applicants that have had records expunged may legally answer “no record”.

The bottom line is, job seekers cannot be 100% sure that an expunged record will not turn up in a background search. If unsure, be honest about the existence of a record with the requester. Provide copies of the expungement order when the record is requested. However, know your rights within your state and handle the criminal records question per the law. You may not be required to answer.

Refer to the blog archive for more articles about criminal records in Employment