Not all criminal records are meant to be permanent. Those sealed records should not have an effect on your background check and future job applications you fill out. Unfortunately, sealed records can and do appear on background checks from time to time. You need to know what to do if you discover a sealed criminal record on your background check to correct the issue ASAP.
A sealed record is any criminal record that has been essentially “locked down” or blocked off so that members of the public, including background screening agencies, can no longer access the details.
Say that you were convicted of a petty misdemeanor when you were much younger. 20 years later, you petition the courts to seal the record. If your petition is granted, your record still exists in the system, but prospective employers can’t see:
In fact, in most cases, records are “sealed” such that they don’t show up on typical background reports. County court offices and other legal institutions don’t keep sealed records in their databases. They might still exist in a file somewhere, but they’re normally very hard to find or learn about.
The purpose of sealing records, especially criminal records, is to make employment easier in the future. With sealed records, a job candidate’s former criminal history won’t affect them as negatively or at all.
Sealed records are similar to expunged records, but they have some differences.
Expunged records are effectively erased. They may as well not have ever existed. When a record is expunged, it is purposefully removed from all possible databases to the best efforts of the government officials responsible for it.
Sealed records remain in the system in some capacity. But, once more, they shouldn’t normally impact things like job prospects, credit screening, etc.
Background check agencies – the third-party organizations that check the backgrounds of job candidates for employers – have access to a lot of publicly available information. They get this information from courts, county clerks’ offices, and other sources. However, they do not have access to sealed records of any type.
That said, sealed records can show up on background checks in some cases. When that happens, it can have negative effects on your job hunt.
Lots of courts and record agencies don’t actively inform the public about expungements or sealed records. Because of this, someone might receive a court order that involves sealing one of their records. But that information might not be received by criminal record database companies. Criminal record database companies are among the ancillary resources that background screening agencies use to compile candidate background information.
Put another way, sealed records might appear on background checks because of miscommunications. If a criminal record company doesn’t know that a record is supposed to be sealed, it might still maintain its copy of that record in its database. Then, when the background check agency contacts them, they provide the sealed record for the job candidate, which can cause issues later down the road.
Generally, no. In fact, many states make it explicitly illegal for employers or background check agencies to inquire about sealed or expunged records of any type, not just criminal records. These states include:
In any of these estates, employers may not ask for or request sealed or expunged records in any capacity, whether they do so to prospective employees or background check agencies. However, if a background screening agency mistakenly or accidentally provides the information in a sealed record to an employer, the employer is not liable for a lawsuit.
Mistakes can and do happen, which is why the dispute process exists.
Under the FCRA, all American citizens have the right to dispute a background check agency on the basis of it being false, mistaken, out of date, or illegally acquired. That last qualifier affects sealed records in the majority of cases.
So, say that you apply for a job and are denied on the basis of your background information. When you receive an adverse action letter from your employer, you find information from a sealed record on that report. You know that the sealed information had something to do with their denial of employment.
Your next step should be to dispute the background check information with the screening agency that provided the report. All background screening agencies have dispute portals or systems online or with physical mail. You are allowed to file a dispute letter with any background screening agency.
When you file your dispute letter, you should include:
According to the FCRA, background screening agencies have 30 days to investigate the disputed information. If it’s correct, they have to send your prospective employer a letter explaining the situation.
Unfortunately, the cat may be out of the proverbial bag. Even if an employer is not supposed to use information from a sealed record against you, they might still theoretically do it and say otherwise. Still, it’s a good idea to correct erroneous information quickly so that other prospective employers don’t get access to the sealed information and use it in a hiring decision.
If you believe a sealed record has appeared on your background check report, be ready to file a dispute with the background screening agency. If you need assistance with this or filing a lawsuit, Fair Credit can help. Our knowledgeable attorneys are ready and waiting for your call, so contact us today.