When you apply for a new job, your prospective employer will likely run a background check on you. This may also happen if you register as a volunteer or bid on a contract. If a company is going to be working closely with you in any capacity, they will want to know as much about you as possible.
The contents of the background check will help the employer to decide if you are someone they want to consider working with, and if there is anything they need to take into consideration.
The background check is often used to narrow down the search for applicants, as they can eliminate any candidates with unfavourable records.
When agencies perform background checks, they tend to check records such as county criminal records, state criminal offences, federal criminal records, warrants for arrest, sex offender registers, adult protective services records, and international criminal records.
Even a thorough background check might not show a person’s full record. Some people have sealed criminal records, or have had their records expunged.
This can be frustrating for employers who want to find out as much as possible about prospective candidates so they can make an informed decision about who to hire. That being said, it can help to prevent unfair hiring practices.
What Are Sealed And Expunged Records?
When someone has been convicted of a crime, they have a criminal record. This is part of the public record and can be accessed by anyone at any time if they apply for the information- including potential employers.
Under certain circumstances, records might be sealed or expunged. This usually happens when someone requests that their records are removed from the public record. If the records are sealed this means that the information is still kept on record, but can only be accessed with a court order.
If the records are expunged then they are completely removed and there is no trace that the conviction took place. You can also get arrest records expunged.
Whilst expunging records prevents the public from being able to access them, they may still be able to be accessed by the police, the courts, or prosecutors. They would have to prove that they had a good reason and they were acting in the public interest in order to gain access to the records.
If your records have been sealed then they will likely still show up on police searches and immigration records. They could also be accessed when you apply for a firearm, a licence to practice law, or a job within a law enforcement agency.
There are other jobs that might require access to a sealed record before you can be hired, such as the police force, teaching, and childcare.
Why Do People Request Sealed Or Expunged Records?
There are several reasons why people might want their records sealed or expunged.
If you are convicted of a crime as a minor, the courts will sometimes seal the records in an attempt to reduce the negative impact that your conviction will have on your life. This can also be granted to adults.
It is thought that allowing people to not be defined by their past crimes can help them to be successful and integrate better into society after they have served their sentence. People who can be rehabilitated into society are less likely to reoffend.
Records can be expunged for the same reason, or they can be expunged as a form of pardon. If someone does something exemplary for their community or for society they may receive a ‘pardon’ by having their records expunged.
Alternatively, it could be included into a deal to encourage a criminal to cooperate with a police investigation or testify against another suspect to secure a conviction.
Any requests to have records sealed or expunged are reviewed by the court. In some cases, the court might put a waiting period in place where a person’s record will be expunged or sealed after a certain amount of time has elapsed.
There are certain crimes that are not eligible for expungement, but this differs from state to state. Some examples are child abuse, sexual crimes, drug trafficking and driving under the influence or drugs or alcohol. The court needs to weigh up the benefit versus the risk of expunging the record.
If someone can be successfully integrated back into society without the record holding them back and this will prevent them from reoffending then this will benefit society overall.
However, if their crime was very serious and/or there is a risk of re-offending then expunging the record is a risk to society and could put innocent people in danger.
Why Aren’t Sealed Or Expunged Records Included In Background Checks?
If the court has reviewed someone’s request to have their records sealed or expunged and has seen fit to grant it, then that person is entitled to their fresh start. If the record has been erased then it would be unethical for agencies who perform background checks to include those records in their reports.
If the records are no longer public records, then they cannot be accessed by the public even if they are applied for. There is usually a good reason why the court has removed the records, and this should be respected.
Sometimes it might take a while for a record to be removed or expunged even after the court has ordered it. It could be removed from some databases but not all of them. If an agency believes that the record should not have been there, they should notify the court and await confirmation before reporting back to their client.
If the records have been sealed then the background check might show that the individual has a criminal record, but won’t go into specifics. This could still harm that person’s chances of being employed.
It is considered unethical for an employer to put a hiring ban on anyone who has a criminal record, but they are allowed to consider a candidate’s criminal record as part of the hiring process.