Urban Myths Continued. Courts Destroy Criminal Records That Have Been Set Aside or Expunged

Posted with permission from ESR Newsletter and Legal Update, a newsletter by Lester S. Rosen Esq. and Employment Screening Resources (ESR), www.esr.com

An Urban Myth that can surprise job applicants is that after a judge vacates, expunges, sets aside, defers the adjudication or otherwise judicially erases a criminal record in some fashion, the records disappear and can never be found.

With limited exceptions, the general rule is that the government does not destroy records.  In the typical scenario, even if the judge orders a set aside, the consumer’s name can still be found by searching the court indexes and the case can still be viewed as a public record.  As a general rule, the only way that a background firm knows that there has been a judicial set aside is to examine the court file where all court orders should be noted.

Of course, each state is different but as a general rule, unless an applicant has been advised by an attorney that the criminal case will be sealed and physically not available anywhere, applicants need to understand that even a criminal case that they thought was erased may still show up.

Even in those situations where the court has ordered the case sealed, the damage may already be done since the record of the case may already reside in a commercial database.  If a background firm locates the case in a commercial database, then the background firm has certain obligations under the federal Fair Credit Reporting Act and similar state laws.  A background screening firm is required to either notify the applicant that a criminal record is being provided, or must pull and examine the actual court file to ensure accuracy.  For employers that want to avoid finding out about criminal records that have been judicially set aside, the best practice it make sure you are working with a screening firm such as Employment Screening Resources that automatically pulls the court file whenever there is a database match to make sure the criminal record is complete, accurate, up to date, applies to your applicant and is reportable.   

Comments

[Greg at Ohio Municipal Law Westerville]

Interesting! Thanks for the blog!