In the United States, proof of criminal prosecution lies in the public record, and it will always remain there. That does not guarantee, however, the availability of those records. When an individual’s home state expunges their criminal record, evidence of their criminal prosecution may be absent on background checks. HR professionals should be aware of the new expungement laws passing in different states: These laws affect hiring processes, help people integrate into the workforce, and provide employers with a greater selection pool.
Most states have some form of expungement laws—some are 50 years old, others are brand new. Additionally, state by state, each expungement law varies in scope and procedures. Recently, Pennsylvania and Utah passed laws to expunge criminal records automatically. In Pennsylvania, the “Clean Slate” bill allows automatic sealing of second or third-degree misdemeanors if a person served under two years in prison and has been free from convictions for ten years. Furthermore, the law allows for the sealing of criminal history records related to charges that resulted in non-convictions.
New York State has recently allowed the sealing of certain criminal convictions. To be eligible you must be crime-free for at least 10 years from your conviction/release date and have two convictions or less on your criminal record. This means no more than two misdemeanor convictions OR one felony and one misdemeanor conviction. You cannot have had any new criminal convictions or have a current criminal case pending.
New Mexico’s Criminal Record Expungement Act became effective on January 1st, 2020. This law would allow for the expungement of arrest records if the arrest were for a misdemeanor or petty misdemeanor offense. Another example is Delaware’s Adult Expungement Reform Act, which became effective in late 2019. The law expunges charges for which a person was found not guilty and isolated misdemeanors.
While people may have expunged their criminal record, technically erasing it from legal existence, proof of criminal conviction, regardless of whether the person is guilty, can still show up in background checks. HR professionals should be aware of this critical fact and learn how to react with full FCRA compliance.
Imagine an HR professional finds a criminal conviction on a background check that was expunged. To comply with the FCRA, they must alert the applicant of their findings. Then, the applicant can dispute the results, requiring the agency to redo the check within 30 days. If they find the same conviction, though, the applicant will have to act as their agent, providing proof of the expungement to their potential employer.
Adjusting to new expungement laws can be difficult. Some background screening providers may not doublecheck records when using databases to provide information to their clients. Recently, Sterling Infosystems, Inc. was fined $8.5 million for violating the Fair Credit Reporting Act (FCRA). Specifically, “Sterling’s procedures created a heightened risk that its consumer reports would include criminal records belonging to another individual with the same name as the applicant.” To avoid similar issues, HR professionals should always use a background screening vendor that uses the best practices in background screenings.
In running background screenings, HR professionals must be careful to avoid using judgment that unfairly affects potential employees. For example, Vermont expunges non-conviction records, meaning a non-guilty person can remove the proof of prosecution from their record. Expungement is advantageous to the person because HR professionals can negatively perceive any form of criminal records, even if the person is innocent. This view is known as the unconscious bias: Even though a person isn’t found guilty, merely looking at their prosecution record might lead to that person’s rejection. This judgment is unfair; without expungement, HR professionals are susceptible to unconscious bias.
Do you have an applicant you denied a job six months ago because of a criminal conviction that may now be expunged? And do you have a record of the “old” record still in your HR systems?
Did you run another criminal record to make sure you are FCRA compliant? If not, you are running the risk of violating the FCRA and rejecting best practices regarding background checks. Furthermore, companies must have a policy regarding old records in the HRIS systems. Otherwise, some companies might automatically deny the person again from looking at the old information. Every day, states expunge peoples’ criminal records. And a few times a year, a state’s laws and procedures change. As an HR professional, you should be aware of these changes.
Note from the author: *I am not providing any legal advice in this article. If you are concerned about a similar matter, you should seek legal counsel.
About the author: Mark Moore is the Senior Account Executive at Alliance Risk Group. Based in the Southeast U.S., Moore’s primary focus is providing employment and tenant background screening services throughout the United States. Click here to view more about Mark Moore!