An expunged record is to have a criminal record deleted to no longer legally exist.
Specifics depend on state laws, but generally charges, arrests, and minor convictions are all legally eligible to be expunged.
Background check companies receive information from a variety of sources, so a conviction could appear in one database, but not another – perhaps because the record has been expunged.
Know your state laws regarding FBI background checks
The background check landscape uncovers different personal and criminal background details, including expunged records from the Federal Bureau of Investigation (FBI) - again, depending upon the state.
Because expungement laws vary from state to state, the FBI will comply with states in many cases to remove a criminal record from the National Crime Information Center.
It is important to learn about your state’s specific background check laws because disclosure of convictions after a certain period of time is forbidden in California, Kansas, Massachusetts, Maryland, Montana, New Hampshire, New York, and Washington. Hawaii forbids disclosure of convictions after 10 years.
Nearly all background checks include a criminal-history check and reveal felony and misdemeanor criminal convictions, any pending criminal cases, and any history of incarceration as an adult.
Arrests pending prosecution and that did not lead to conviction may also be reported.
Records of juvenile convictions and detention that have been sealed by a court typically do not appear in such a search.
The difference between a background check and an FBI background check
An FBI background check is typically used to screen candidates for federal government agencies and companies that work with and for them.
This level of background screening reveals any and every interaction a candidate may have had with law enforcement agencies that also provide their criminal data to the FBI database - including convictions, arrests, traffic violations, and other minor infractions.
Employment candidates also submit to fingerprinting recognized by a law enforcement agency that is then checked against the FBI’s Integrated Automated Fingerprint Identification System (IAFIS).
This is a comprehensive electronic database of fingerprints compiled by law enforcement agencies, immigration officials, and perhaps even past background checks.
This database then links individual data to a repository of fingerprints collected in both criminal and non-criminal matters.
Fingerprints are also checked against the National Crime Information Center (NCIC) database, a huge compilation of criminal-history information and data on wanted criminals, and against databases of sex offenders and terrorists.
It is important to note that in recent years, FBI background checks have been under scrutiny, because bureau databases are sometimes incomplete and/or reflect discrepancies, especially when they involve minority job candidates.
It is also important to note that passing an FBI background check is not equivalent to obtaining a security clearance which involves much more extensive research and personal interviews with the hiring manager and company leader or owner OR to a Level 2 background check.
A Level 2 FBI background check
A Level 2 background check is a specialized type of fingerprint background check performed on candidates for jobs involving work with children, the elderly, or typically required for volunteer and paid positions at schools, daycares, senior centers, as well as for adoptive and foster parents.
A Level 2 background screen checks applicants against databases of information on arrests, convictions, and incarceration related to violent behavior and crimes against children and other vulnerable persons.
A Level 2 check will even uncover those sealed or expunged records – especially if they involve the mistreatment of children, the elderly, or the disabled.
Expunged vs Sealed Records
When a court expunges a conviction or trial record, the public does not have access and the defendant retains the right to not disclose the case when asked about his/her criminal history.
Sealed cases are not eligible for disclosure in most pre-employment background checks.
If there is a significant time delay between the resolution of a case and the decision to expunge it, its records may continue to appear in criminal-background database searches until records are updated to reflect the expungement.
The existence of expunged convictions that involve mistreatment of children or other vulnerable individuals may be legally reported in Level 2 background checks, though unsealing the details of those records typically requires a court order.
How to ensure a complete background check that includes expunged records
Background checks’ contents can vary considerably - depending on the employer’s requirements, the quality of the information resources used by the screening company, and the state.
The best way to ensure a check is compliant with federal and local regulations and is equivalent to an FBI level and Level 2 background check is to work with an FCRA-compliant background-check company.
It is imperative to work with a background check company that is well-versed in varying state expungement laws and with those who work with the most comprehensive and up-to-date criminal databases by state, as well as with the FBI.
These companies are the providers who offer the best value, as they can also help companies and organizations to best identify those potential candidates whose expunged records may or may not be the right candidate for the job, or who may or may not pose a potential threat.
For more on how you can implement comprehensive background checks in your business, click here.