Will an Expunged Record Show Up on a Background Check?
Understanding Expungement
Expungement refers to the legal process of removing or “erasing” a criminal record from one’s criminal history so that it no longer legally exists, although the specifics depend on the laws of each state. In Texas, for example, expunged records should not appear anywhere, offering individuals a chance for a fresh start. However, this relief is limited by certain conditions.
Expungement is governed by state law, not federal law, which means records removed at the state level may still remain in federal databases such as the FBI’s system. Expunged records are often omitted from standard background checks, but certain checks, like a Level 2 FBI background check, may still reveal them—particularly if the expunged case involves mistreatment of children or vulnerable populations. In Texas, expunged records should NOT appear anywhere. They should be completely destroyed.
Legal Implications of Expungement
Expungement of a criminal record can have significant legal implications, both positive and negative. On the one hand, expungement can provide a fresh start for individuals who have been convicted of a crime, allowing them to move forward with their lives without the burden of a criminal record. This can open doors to new employment opportunities, housing options, and other aspects of life that might have been previously restricted.
However, expungement can also have unintended consequences. For instance, while the record is removed from public access, it may still be accessible to certain entities. Law enforcement agencies, for example, can often view expunged records, which might affect future interactions with the legal system. Additionally, private companies that conduct background checks might still have access to outdated information if their databases are not updated in real time.
It’s also crucial to understand that expungement laws vary significantly from state to state. In some jurisdictions, expungement might be an automatic process, while in others, it requires a formal request to the court. Some states have specific requirements or restrictions on the types of crimes that can be expunged, adding another layer of complexity to the process. Therefore, individuals seeking expungement should be well-informed about the laws in their specific state to navigate the process effectively.
How Background Checks Work
Background checks compare an individual’s information against various databases to uncover a range of details about their past. These checks typically include data from systems like the National Crime Information Center (NCIC) and the FBI database. Such checks reveal not only criminal convictions for felonies and misdemeanors but also pending cases and incarceration history.
Interestingly, arrests that didn’t lead to convictions and sealed juvenile records may not appear on many standard background checks. However, private companies that mine public records and court records before an expungement can still sell this outdated data. This makes it possible for expunged records to occasionally surface if private companies fail to update their databases in real time.
Types of Background Checks
Not all background checks are created equal. A standard background check may not reveal expunged records, but a Level 2 background check, which uses a fingerprint background check, can. These checks are often required for jobs involving work with children, the elderly, or other vulnerable populations, making it more likely for expunged records tied to these situations to surface.
Security clearance background checks are another category where expunged records might still be visible. These checks are extensive and often look into crimes that could disqualify someone from clearance eligibility. Whether it’s for government work or private-sector jobs requiring a high level of trust, expunged records may still play a role in the hiring process.
Limitations of Expungement
While expungement offers significant relief, it has its limitations. For one, expungement does not automatically erase records from private companies that collect public data. If these companies fail to update their records, expunged cases may still appear in background checks conducted by private entities.
Moreover, the expungement process itself requires meticulous paperwork. Errors or incomplete filings can leave a record unaddressed, making it crucial for individuals to file and verify their expungement properly. Additionally, expunged records could resurface if a person is arrested or involved in future criminal proceedings, further highlighting the importance of a clean and thorough expungement process.
Differences Between Expunged and Sealed Records
There are critical differences between expunged and sealed records. Expunged records are treated as though they never existed, offering the individual complete relief for most purposes. In contrast, sealed records still exist but are hidden from public view. While expunged records cannot typically be accessed by employers, sealed records might be unsealed in certain circumstances, such as during government investigations or court orders.
For employers, understanding the distinctions between expunged or sealed records is essential. Using expunged records for hiring decisions is often illegal, whereas sealed records may still be accessed under specific conditions. Navigating these complexities requires careful consideration to ensure fair and lawful employment practices.
What to Do If an Expunged Record Shows Up on a Background Check
If an expunged record appears on a background check, it could be due to data mining by private companies, incomplete expungement, or mistakes in the expungement process. Resolving this issue requires swift action. Individuals can:
Contact the court where the case was heard to verify that the expungement was correctly processed.
File an expungement request with the FBI to ensure the federal database is updated.
Seek assistance from a knowledgeable attorney to address potential legal hurdles and expedite the process.
Employers should also handle such situations carefully, giving applicants the opportunity to explain discrepancies. By understanding the expungement process and ensuring accurate records, both applicants and employers can navigate background checks with greater clarity and confidence.