Expunged Records: Can Employers Ask?

An expunged record is a criminal record that has been sealed from public view, including from potential employers. In most states, employers are not allowed to ask about any charges, arrests or convictions that have been expunged from a candidate's record. However, there are exceptions for certain types of jobs, such as those in law enforcement, that require an FBI background check using fingerprints to make a match. In these cases, employers may be able to see sealed records. Additionally, some states do not permit expungement or only allow it under very limited circumstances. Therefore, it is important to understand the laws in your specific state when considering whether an employer can ask about an expunged record for a law enforcement job.

Law enforcement job applicants must fill out Standard Forms with detailed personal history questions

Law enforcement job applicants are typically required to fill out standard forms with detailed personal history questions. While specific requirements may vary depending on the state and the law enforcement agency, some common aspects of the application process can be outlined.

In Texas, for example, the Texas Commission on Law Enforcement (TCOLE) outlines various requirements for becoming a peace officer or seeking licensure in the state. This includes the need for a psychological and physical examination prior to enrolling in an academy. Additionally, specific forms and application packets are available for individuals who have previously served as peace officers in another state or for the federal government.

In the UK, police recruitment involves completing an application form, which can usually be done online through the recruitment portal of the chosen police force. This form includes sections on personal details, health and mental wellbeing, eyesight, tattoos, and nationality. Applicants are also assessed on their suitability for the role through competency-based questions that explore their experiences and alignment with the Competencies and Values Framework.

In terms of criminal records, some states, such as Oklahoma, have laws that protect individuals with expunged records. Employers in Oklahoma are prohibited from asking applicants about expunged or sealed records and cannot require disclosure of such information on job applications or during interviews. Similarly, Washington state law makes it unlawful for employers to inquire about an applicant's criminal record or conduct background checks until they determine the applicant's qualification for the position. However, there may be exceptions for certain jobs, such as in medical facilities, schools, or government agencies.

It is important to note that some law enforcement positions, particularly those in healthcare, banking, education, or law enforcement, may be exempt from these protections. In California, for instance, the Fair Chance Act allows employers in these fields to conduct criminal history checks and ask about convictions after making a job offer. Therefore, it is advisable to consult with a professional or review state-specific laws and regulations to understand the requirements and protections related to expunged records when applying for law enforcement jobs.

In some jurisdictions, law enforcement agencies can see sealed records

The ability of law enforcement agencies to view sealed records varies across different jurisdictions. In some states, such as Oklahoma, it is illegal for employers to ask about expunged or sealed records. Specifically, employers cannot require individuals to disclose any information contained in sealed records during the hiring process.

However, in other states, there are exceptions to this rule. For instance, in New York, courts, prosecutors, and law enforcement agencies are mandated to seal records when a case is terminated in an individual's favor or results in a non-criminal violation. Yet, these sealed records can be made available to law enforcement agencies and prosecutors upon a court order or a formal written request. Similarly, in West Virginia, sealed records in the court's possession can be inspected by law enforcement upon a petition filed by a prosecuting attorney if it is deemed necessary for an investigation or prosecution. Louisiana also allows expunged records to be accessible to law enforcement and prosecutors for criminal law investigations or administrative duties.

It is important to note that some agencies and employers may have access to sealed records in specific circumstances. For example, federal and state law enforcement agencies, as well as state entities responsible for issuing firearm licenses, may access sealed records for law enforcement purposes. Additionally, employers may access sealed records when hiring for positions such as peace officers or police officers.

While the law generally prohibits employers from inquiring about expunged records, there are exceptions for certain types of positions. For instance, medical facilities, schools, and government agencies like the military may require qualified candidates to disclose if they have expunged records. Therefore, it is advisable to consult a professional before disclosing any expunged records during the hiring process.

Some jobs may ask qualified candidates to disclose expunged records

While it is illegal for employers in some states, such as Oklahoma, to ask about expunged records, there are exceptions. Some jobs may require qualified candidates to disclose expunged records. For example, certain positions in healthcare, education, or law enforcement may necessitate this disclosure. These exceptions typically apply to roles where the employer is mandated to conduct a background check or restrict employment based on criminal history.

In Washington, employers are prohibited from inquiring about an applicant's criminal record or conducting a background check until they have determined the applicant's qualifications for the position. However, once an applicant is under consideration, the employer may inquire about their criminal record, including expunged records. Similarly, California's Fair Chance Act allows employers to conduct a criminal history check and inquire about convictions after making a job offer, but they cannot consider convictions that have been expunged, sealed, dismissed, or statutorily eradicated.

It is important to note that each state has its own expungement laws and processes, and the requirements for disclosure may vary. For instance, some states require expungement disclosure for any job in a school setting, public or private, or other positions involving close contact with children. Applying for a state-issued professional license, such as a law license, may also necessitate expungement disclosure. Additionally, certain government agencies, such as the FBI and other federal law enforcement positions, require disclosure of expunged records.

When applying for jobs, it is advisable to consult with a professional or a local expungement attorney to understand the specific requirements and exceptions of the state in which you reside. They can provide guidance on whether disclosure of expunged records is necessary for the particular job you are seeking.

Employers cannot use any information related to an expunged conviction against an employee or applicant

In most states, once a criminal record has been expunged, it is sealed and cannot be released to employers. This means that, in most cases, employers cannot use any information related to an expunged conviction against an employee or applicant. In fact, in some states, such as Oklahoma, it is illegal for employers to ask about expunged or sealed records. Specifically, employers in Oklahoma cannot require applicants to disclose any information contained in sealed records, whether on a job application or during the interview process. Similar laws are in place in Washington state, where employers cannot ask about an applicant's criminal record or perform a criminal background check until they have determined that the applicant is qualified for the position.

In California, employers can do a criminal history check and ask about convictions after making a job offer, but they cannot ask about or consider convictions that have been expunged, sealed, dismissed, or statutorily eradicated. They also cannot consider convictions for which the applicant has received a Certificate of Rehabilitation or pardon. However, this law does not apply to employers with fewer than five employees or jobs where the employer is required to restrict employment based on criminal history or perform a background check, such as certain jobs in healthcare, banking, education, or law enforcement.

Even if an employer can see an expunged conviction, they often cannot hold it against the applicant or employee. If an employer intends to use information in an applicant's criminal record against them, they may be required to give the applicant a copy of the record and a period of time to point out any incorrect information or provide evidence of rehabilitation. Additionally, if an applicant has only received a deferred sentence, which is not the same as an expungement, this will still show up on background searches. Therefore, it is important to ensure that any eligible crimes have been expunged from one's record.

In the state of Oklahoma, it is illegal for employers to ask about expunged records

Oklahoma has recognized that limiting job opportunities for those with a criminal record often prevents them from successfully re-entering society. In 2016, former Oklahoma Governor Mary Fallin signed an executive order requiring state agencies to "ban the box", eliminating questions about felony convictions from employment applications. This gives offenders a chance to move beyond the initial screening process and explain their history in person. Additionally, the Fair Chance to Compete for Jobs Act of 2019 (FCA) prohibits federal agencies and private companies that hold federal contracts from asking employees about criminal history prior to making a conditional offer of employment.

Oklahoma Statute Title 22, Section 19, states that employers cannot ask applicants about expunged or sealed records. Applicants do not have to disclose any information contained in sealed records, whether on a job application or during the interview process. They are allowed to say that "no such action ever occurred". Furthermore, no one can deny employment or housing because an applicant refused to reveal their records.

Expunging a criminal record in Oklahoma seals it from public view, including from potential employers. However, it is important to note that expunged records are not deleted or destroyed, and can still be accessed by law enforcement and certain government agencies.

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