The bad news: background check removal law is a largely untouched area of the legal system that mixes criminal records with the increasingly complex world of public record databases. It is very misunderstood and fraught with misinformation and hocus-pocus.
The good news: you’ve come to the right place.
Many people with criminal records look to making a fresh start right about the time someone is about to make a hiring decision. While this is not the best time to start the process of criminal record removal, it’s not too late either.
And even though it’s not very well known to the public and most attorneys, the law still matters in this area.
To find out more about this lesser known legal practice area, please read on!
Legal Disclaimer: Bart Kaspero has been a criminal defense lawyer for over 15 years. His law firm has helped thousands of clients navigate the complex justice system to keep their reputations clean. Along with criminal record expungement and arrest record sealing, Kaspero developed a legal technology that automates the removal of past arrests, charges, and convictions from the worlds largest criminal database systems.
Please note:This article is for informational purposes only and does not create an attorney/client relationship. For those who wish to proceed with record clearance by petitions for expunged or sealed cases (or to discuss their options) we highly recommend you consult with an experienced attorney or law firm.
I: How Background Checks Begin (legally)
Although there are many reasons to conduct background checks, the most common that comes to people’s minds are for job placement.
A potential employer is very likely to conduct some kind of screening on a job candidate. An often quoted figure is that over 93% of employers order background checks on new job hires.
For many employers, this means a criminal background check.
But a prospective employer will not have direct access to a national criminal database. And searching through an applicants criminal history can be cumbersome to those who have ever tried looking through county criminal records.
To access the right criminal record information, employers will hire background check companies to outsource this work.
II: Background Check Companies & the Law
The process for background screening of employment candidates involves multiple layers. But the heavy lifting is often done by background check companies.
Before anything, there must be Permission.
Similar to credit checks [like the major entities that are commonly known as a credit bureau], an agency conducting the background check must have authorization to do so–otherwise it’s an unauthorized report and could be a privacy violation.
A court may consider an impermissible report as tantamount to an invasion of privacy and does not take kindly to those who violate consumers this way. Background screening that skips this step faces enormous scrutiny.
Like exposing your financial information to a fraudster or pulling your credit report without authorization, a background report must first be allowed by the person it will be about.
III. Finding the Records from Legitimate (Legal) Sources
At first glance, criminal records appear easy to find because an online search makes them look plentiful–but the largest databases are not open to public access.
Most established background check companies will have contractual partnerships with vendors that maintain different levels of criminal record data management. Some specialized in arrests, while others are focused primarily in convictions. The supply chain looks different depending on geography and industry.
One very important thing to note here is that conducting background checks is not the same as searching for records provided by people search engines.
If a company holds themselves out as a “background check” company and sells criminal data without the proper compliance policies–the consequences can be disastrous. Beyond being held liable to consumers for being unauthorized sellers of criminal data, they can be on the hook for a slew of unlawful business practices.
What About People Search Engines?
Yes, people search businesses do maintain and sell public records (such as addresses, social security numbers, and sometimes criminal data). However upon closer inspection, the fine print for most of these sites warn the user that they do not guarantee accuracy and that the records may even be associated with other people (such as similar sounding names).
It’s therefore important to note that people search websites are not background check companies despite the wording used on their webpages.
Consumer Reporting Agencies
The biggest difference between online database providers and established background check company is the manner in which they conduct themselves as a bona fide consumer reporting agency. Distinguishing the two is often the monumental task of hard-working judges and consumer lawyers. But a good place to start in the manner in which the entity generates a report.
IV. The Background Check & The Report
Ultimately, the company doing the screening investigation generates some kind of background check report for the employer.
Criminal Record Accuracy
For the properly functioning consumer reporting agencies, this is tantamount to a credit report and must be in full compliance with federal and state standards. Ensuring accuracy and having proper internal procedures to adequately uphold accuracy are critical.
Just like an inaccurate credit report, a background check report that publishes erroneous criminal data can have catastrophic consequences to an individual and their family.
Therefore, a consumer reporting agency that does not honor this responsibility will face serious legal liability. Publishing or sharing inaccurate information to third parties is more than just a violation of trust, it’s illegal.
Partnerships and Subcontractor Relationships
Consumers should also be aware that background checks and the reports they generate are often the result of an exclusive partnership between a data provider and several subcontractors.
Therefore, in attempting to have a criminal record cleared from future reports requires an understanding of the entire ecosystem of consumer data markets and supply chains.
So to fully grasp the law that involves removing criminal data from background checks systems, it helps to view the problem at the base level.
V. Criminal Records & the Data Ecosystem
A record can be any stored bit of information.
And make no mistake about it; a criminal record is almost always public record.
Thousands of law enforcement agencies publish their arrest logs to the general public daily.
Both federal law and the governing state’s laws that deal with individual privacy rights typically take a backseat to the public’s “right to know.” This has been supported in countless ways where legislators and courts have determined that public safety is paramount to the community at large.
Thus: the general consensus in most states upholds the following reasoning:
Arrests are public records. Criminal data providers may harvest such records. Arrests that lead to criminal charges are filed in public courts. Legal services and criminal data providers may also harvest these publicly available documents that are open to the public and can be accessed at any reasonable time. If the individual pleads guilty in court to the charges brought against them, this then solidifies the truth of the accusation and may be found by those who feel they have a right to know the character of that individual for decisions of employment, housing, government benefits, and whether to engage in intimate relations.
A background check can be ordered for new job applicants where their record is relevant to the general safety of the workplace or nature of the work involved. Hence, criminal history that reveals the past arrest, charges, and convictions is legal.
But eventually, we don’t want our past to haunt us forever.
VI. Criminal Record Removal Law
Background check removal is still an evolving practice area for any legal practitioner or data management/compliance company. The industry fluctuates in lightning speed and the laws governing background check removal grow increasingly complex. The simplest way to begin understanding that journey starts with the most powerful criminal record privacy tools available to most people: expunged records and sealed records.
Expunged Records Law
In an overwhelming majority of the US, varying levels of state law allows most with convictions to petition the court for relief from the collateral consequences of a guilty plea.
The legal process to describe this petition is typically called an expungement. After it is granted, a record expunged from a person’s criminal history has effectively been reversed. For most people, the court records that reflect that specific case means the record cleared and the information associated with it has changed its status. A court order is the final stage for this process.
The procedures vary depending on the court–as does the waiting period (for many, it can be 6-8 weeks; while some states require several years).
A really important fact cannot be understated: The criminal record expungement information withinin the court records must be free of clerical errors. It has been shown in cases of identity theft, background check violations have been ambiguous when the identifying information of the victim is shockingly close to another person with a criminal history that taints a report for housing or employment.
After a successful petition for expungement is ordered, an individual’s first step in privacy begins. Expunged records are a prized possession in the US for a reason.
The criminal charges and the record of conviction become non-reportable to almost any kind of legal background check conducted by employers. Thus, to expunge criminal records means to legally remove them from their “conviction” label and replace it with dismissal. For places where conviction rates are high, criminal record expungement is critical.
As always, there are exceptions. Sex crimes are often excluded from criminal record expungement relief. Similarly, those with sex related convictions may not be removed from sex offender registries unless their cases meet very strict guidelines.
But for reasons stated below, criminal record expungement is only a piece of the privacy puzzle.
Sealed Records Laws
For those with past arrests where no criminal charges were filed, the more appropriate remedy comes in the form of record sealing.
Traditionally, there has been a rule of seven years as being the benchmark where past non-conviction records can be reported in background checks and similar reports.
Sealed records (also petition based in most states) afford an individual the right to seal and destroy arrests that never went further so that the seven year rule no longer applies to them.
After the petition is filed, the court must find good cause to grant the request. Doing so allows someone to have an extra protective layer in their record being more private.
Diversion and Dismissed Cases
A lesser known and often forgotten category of sealed record can be dismissed charges. Many with drug possession offenses qualify for highly beneficial programs that throw the case out of court entirely. However, neither sealing nor expunging these records are an option.
Most county courts are also free to institute their own policies that benefit low-level offenses so that they can qualify for dismissals.
After issuing a granted order for dismissal, a person can make great use of these documents to bolster the removal of their criminal history from criminal background check databases.
A Word about Clean Slate Laws
Some of the most groundbreaking laws have been passed in the past few years that remove the petition-based barrier for many with conviction histories. These laws promise to clean criminal histories automatically and many are working exactly as they should be. However, there are major drawbacks to these laws.
For starters, many defendants do not know one way or another if they are the beneficiaries of these largely hidden procedures. Similarly, many may hold a false sense of security that their past may qualify and can be shocked to learn this when it’s too late.
VII. Background Check Removal Lawyer
As stated earlier, criminal record expungement is only a small portion of the process needed to truly clear ones criminal history where it can no longer be accessed or published. The same can be said about a sealed record of arrest.
Beyond the expungement process there are less known strategies that can be complicated and counterintuitive to anyone outside of the criminal data ecosystem.
Choosing an experienced lawyer in background check removal law is critical to getting any legitimate result in record clearance.
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