Employment Screening and Sealed or Expunged Criminal Records

When conducting county criminal background checks for employment screening purposes, be aware that you, the employer, are hnot suppose3d to consider sealed or expunged records.   This would seem simple t first, as sealed or expunged records should not be returned to you.  

But, like with many things, it is not always as clear cut as it first appears.Sometimes when conducting background checks for clients we will find that records show that a record has been sealed.  Or there is a county criminal record that is marked, "this record has been expunged."   While the county court researcher is supposed to find no evidence of records, these notations, while not commonplace, or not what I would consider rare, either.   So there you are, the dilemma, whether to ignore the obvious, the elephant in the living room.

The truth is it should be no dilemma at all.   The responsible background checking or employment screening service should alleviate the possibility of any FCRA transgression by returning the background search as "no records found."   Sealed records usually occur because, for the most part, the processing has resulted in a non-criminal disposition.  With expunged records, there may have been a criminal disposition.

However, good behavior over time, accompanied by a formal request to the courts, will compel a judge to order the removal of criminal records from the file.   In short, somebody does something wrong, cleans up their act and never does anything wrong again.   The court is sympathetic and rather than see the convicted party endure the hardships incumbent in seeking a job with a criminal record, they give that person a break.

As noted in an article in YNN, Your News Now, in upstate New York, there are apparently a number of criminal records that should be inaccessible, having been sealed or expunged.  Not only is there sometimes a notation that the record has been sealed or expunged, but the record itself is still on file.

According to the article, which refers to some discrepancies in Onondaga County," the reports in question are from the "Criminal History Arrest Incident Reporting System" or CHAIRS, issued by the Sheriff's office. ACTS studied 70 reports over 20 months, finding sealing errors, as well as arrests listed for non-criminal offenses. Undersheriff Warren Darby says the sample size was only a sliver of the 9,000 reports issued each year.

"That's not even one percent of the activity, so it's not even a, if you're going to extrapolate some thoughts about how the process is running, that's not enough sample," said Onondaga County Undersheriff Warren Darby.

But the group says some people have been denied work or other opportunities because of what was listed on those CHAIRS and they want some changes to the three decade old system."

As a recruiter or employer, should a county criminal record return, noting the record was sealed or the record had been expunged, ignore these notations.  I realize it is difficult, but by law even the possibility of a criminal record at that juncture should not be considered as part of your hiring practices.  Sealed records.  No records.   They should be reported as no record at all.

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Comment by Cindy J. Biter on April 18, 2011 at 10:17am
I'm going through this very thing right now!  Thank you so much for this information.  And you're right, it is a dilemma!!!

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