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

Ban the box update

NOTE: This post was originally published in August 2016 and has been updated with more recent data.

The Ban the Box movement was initially reviewed in this blog in the 2013 post, Should the box be banned? The movement continues to grow and this blog has updated the progress.
Since the last update in September 2018 there hasn’t been much in the way of new legislation. However, some states are refining their Ban the Box laws. Massachusetts passed a Ban the Box law in 2010, which included private employers when most states have laws only covering State job applications. 

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 instead of five. Employers cannot inquire about expunged records. Applicants that have had records expunged may legally answer “no record”.

While past private employer Ban the Box bills have failed in Colorado (Law already cover State employers), the 2019 legislature may be amenable to idea.

What is “Ban the Box”?

For the last several years there has been a movement to remove from employment applications the “box” that asks the question, “Have you ever been convicted of a crime” or any inquiry about criminal history. What has become known as  “ban the box”, the campaign feels that one’s criminal history should not be a consideration of employment at the time an application is submitted, rather, at a later time during the interview process. It is felt that asking this question on the application reduces the chances of those with criminal records to be employed. Employers should meet applicants first, get to know them, give a chance to explain themselves and then get to the criminal history. The Equal Employment Opportunity Commission (EEOC) has updated its policies, issuing guidelines in 2012 suggesting that employers wait until after a personal interview before making inquiries about criminal history.

In January 2014, there were fifty-six cities that had “banned the box”. As of September 2018, that list included over 150 cities and counties, and 32 States (Eleven of which have laws that include private employers)

CURRENT STATE LIST

Arizona

California*

Colorado 

Connecticut *

Delaware 

Georgia 

Hawaii*

Illinois*

Indiana

Kansas

Kentucky

Louisiana 

Maryland 

Massachusetts*

Minnesota*

Missouri 

Nebraska 

Nevada

New Jersey*

New Mexico 

New York 

Ohio 

Oklahoma 

Oregon*

Pennsylvania

Rhode Island* 

Tennessee 

Utah

Vermont*

Virginia 

Washington*

Wisconsin

*States with laws that also cover private employers

The Society for Human Resource Management posted a good article that breaks down laws State by State, which can be viewed at Ban the Box Laws by State and Municipality .

Maryland Ban the Box

            Maryland’s law took effect October 1, 2013, and applies only to State of Maryland employment applications. State government cannot ask about criminal record or criminal history of an applicant until the applicant has been provided an opportunity for an interview. Exempt from the law are positions in the Department of Public Safety and Correctional Services. Baltimore passed a similar law in 2014, restricting employers with 10 or more workers from asking a candidate about criminal records until after a conditional employment offer is made.

In 2017, Louisiana became the first state to enact a ban the box law for state institutions. Maryland passed a law in 2017, but the Governor vetoed it. In January 2018, the Maryland legislature overrode the Governor’s veto, reinstating the law.

As the laws regarding criminal history continue to evolve the legislative season is a good time to review your interview and questions and job application content.

Click here for other posts relating to Ban the Box.

Cleaning Up Your Online Presence

Ever been asked at checkout for your phone number? You haven’t been in the store for a long time, if ever by your recollection, but the clerk wants to know if you’re in the system. You provide a phone number and surprise surprise you are in there! Phone number, name, and address. It’s probably not a retail conspiracy to create a super database of shared data. What it does reveal is how our lives and personal data are intertwined within the world of information.

When information was written on paper there was less of it and it was more fragile. Tear it up, burn it, poof it’s gone. Carbon paper, mimeographs, and copy machines (Younger readers will have to look those up) changed that. Documents were being copied and filed in triplicate. Computers, of course, made it all easier but it wasn’t until the ol’ World Wide Web came along that hiding in plain sight became difficult.

In the old days it was easy to disappear. You simply moved to another town. Started using a new name and slowly built your new persona. As technology progressed information began being stored on computers. Those computers could be accessed for information stored about you, but only for the specific information the entity had stored. Once computers became connected one entity could access another’s information. Then they began sharing information between each other and saving the data locally. The more digitally involved you are the bigger your online presence. As young people enter adulthood they have little to no digital footprint in the context of financial databases. What they do have is a social footprint, more on that later.

Google yourself

Have you ever searched your name? If not, give it a try. You might be surprised what pops up or how many of you are out there. The more you are in the public eye the more information that is going to be out there and, thus, the harder to clean up your online presence. A regular Joe should have limited occurrences as the result of a search. But even regular Joe’s can have an online presence depending on their interaction with social sites and images associated to their name. And that is what you need to be controlled.

Information for sale

Think about the seed system of a watermelon. You can take out a portion from the middle, but there are going to be all those strands extending throughout the melon. That is how it is in the digital world. Things truly do live forever on the Internet. You can have a record expunged from a database, but any reference to or sharing of that record in other databases is going to give it new life. Data has become a big commodity. Everything is for sale on the Internet. Data is being collected on every interaction you have on the Internet. The data collected by brick and mortar businesses is sought after. Once government databases went online (real estate, court information, etc) information brokers snatched up this data. All of this information is bought and sold and resold. The original purveyor of the data may have deleted it but the new entity has it saved and published it their own way.

Everyone that has data is looking for revenue sources, especially governments. Data mining companies buy data from phone companies (landline and wireless) and the government (real property and court records). The information is legitimately offered for sale on the Internet through pay sites or resold. Ever get those mailings and wonder how Joe Realtor knows how long you’ve lived in your house and what you can sell it for?

Your Job image

Younger people may not be in databases for real estate or financial institutions but they are using social media and sharing the media. Even someone with little life experience will pop up in a simple Google search, most likely under images. This is what haunts the 20-somethings when they start their job searches. Over the last few years’ different surveys have revealed that 40% of college admission offices and 40% of HR professionals research social media regarding applicants. Staying aware of your online presence is especially import when trying for a job.

Cleaning up online presence

You’re first step should be stop the flow of information. Review and change your social media privacy settings. Remove information from online shopping and other accounts that are old or unnecessary.

Whether it’s the garage, the basement, or the Internet before starting any clean up job you have to assess the situation. Start by searching your name and then different variations with your name, town, occupation, and any other identifier that you feel has a strong attachment to your name. Would suggest using Google as it is the most powerful, but using other search engines wouldn’t hurt. You’ll probably get different results.

Make note of the sites in which you pop up and what they are referencing. Find the source of the material you want removed and contact the source directly. Many will want sound reasoning why the post/picture should be removed. May want to read the companies privacy statements before you make the call to know where you stand and/or how to make the request.

Even though the source removes the post once it has been shared it lives on in other sites. You’ll have to track the posts digital trail and contact those companies as well. The tedious part is finding every link that’s associated with your name and going through the process each time. As with any situation where you are fighting an issue Document Document Document. Keep copious notes of your efforts in case you need to prove your attempts later or make subsequent requests.

After all that you are still going to be able to “find yourself” on government public access sites like real property and courts. People search sites and phone number search sites sell the information you are trying to keep private. Matters of public record like newspaper articles in which you’ve been mentioned are going to pop up.

To get your name removed from marketing lists there are organizations that can help. Similar to the national do not call registry, these services allow consumers to opt of marketing offers. You would be adding your name to another database, which may be counterproductive to what you’re trying to accomplish, but it does keep marketers from contacting you. Maybe. Who knows if it really works?

One such service is run by the Direct Marketing Association and allows consumers to have their names and addresses removed from direct marketing mailing lists. There is a fee-$2 for 10 years if you register online. The site can be found at www.dmachoice.org. The second removes the consumer from credit card and insurance offers. The service is provided in a joint venture between Experian, Equifax, Innovis, and Transunion. The site can be found at www.optoutprescreen.com.

You won’t be able to eradicate everything. If you’re serious about removing yourself from the Internet you’ll have to have as much as possible redacted. The rest will have to get buried in the voluminous amount of data filling the Internet. The less that is out there the more specific the search will have to be to find you. Not gone but harder to find.

Your personal information may be in myriad retail databases but at least you can try to keep what others read about you to a minimum. You can’t just completely disappear but can clean up your online presence so that you’re not easily searched.

See our blog archive for more posts about online presence.

Should social media rants get you fired? March 2017

Social media checks July 2016

Convicted? Never convicted October 2014