Expansion of expunged criminal records and their impact on background checks
States are expanding the types of criminal records eligible for sealing and expungement, part of a nationwide wave of so-called "second chance" or "clean slate" bills created to limit employers' access to certain criminal records. Protected records under the new legislation include minor misdemeanors and even low-level felonies, a move designed to improve the job prospects of ex-offenders, supporters say.
Laws vary regarding the sealing or expungement of an individual's criminal history, so employers that conduct background checks should be staying abreast of the changes in their region. Most states allow criminal records to be sealed or removed from public view, while other states permit expungement under limited circumstances.
Last fall, Washington D.C. Mayor Muriel Bowser called for legislative reforms in the sealing of arrest records for residents who were later not convicted, ideally shortening the wait before a record can be sealed. Bowser's proposed legislation would overturn current law calling for proof from the individual that their record deserves to be sealed, with or without a finding of guilt.
Proponents say expanding the types of offenses subject to sealing or expungement can ease an ex-offender's transition back into society and gainful employment, joining
ban-the-box policies that restrict companies from asking applicants about criminal convictions until later in the hiring process.
Applicants have levied lawsuits against employers for making hiring decisions based on sealed or expunged records, so HR professionals should be keeping up with all relevant laws. For example, at what phase of the hiring process is a company permitted to make a criminal history inquiry? What do employers have to tell a job candidate about their intent to run a criminal check? A reputable background screening vendor will compare positive criminal records hits to country-specific records to check if any of those convictions are sealed or expunged.
Under many ban-the-box ordinances, applicants must be informed about the ways a positive criminal record hit may adversely impact their job prospects. Employers could use this time to discover whether the record in question was supposed to be sealed or expunged, and document the discussion before making an adverse decision based on the record's current status.
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