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According to the SentencingProject.org, nearly one in three adults in the U.S.—or 70 million Americans—have a criminal record, including those who were arrested but not convicted. For many of these individuals, a criminal record creates a significant barrier to employment, even when the record includes only a misdemeanor arrest or conviction. Regardless of their qualifications, people with criminal records struggle to participate in the American workforce and contribute to their families and society. There’s a cost for employers as well, who are unable to benefit from the talents of tens of millions of qualified candidates.
As of April 2021, at least 11 states have automatic record expungement laws, but eligibility depends on the number of convictions and the type of crime, according to the Collateral Consequences Resource Center, a nonprofit repository of state and federal restoration laws and policies. These laws are often referred to as “second chance” or “clean slate” legislation, and more states are considering some form of record expungement law. The difference between automatic expungement and standard expungement laws is the level of difficulty for eligible people. Many who are eligible for expungement do not complete the process of applying for it, as it can be costly and confusing. The new laws allowing for automatic expungement simplify this process, and eligible individuals will automatically have records expunged instead of having to apply for it.
How Employers Benefit from Criminal Record Expungement Laws
Expunged criminal records are sealed arrest and conviction records. Once an arrest or conviction has been expunged, the applicant does not need to disclose it to a potential employer and the record should not show up in a criminal background check.
From an employer perspective, the expungement of criminal records results in expanding access to job training and education to a broader pool of individuals who potentially would not have been considered. However, the value for employers isn’t just a broader pool of talent from which to select candidates.
According to the Society for Human Resource Management, 82% of managers report that the value second chance employees bring to their organization is as high as, or higher than, that of workers without records. And 66% of managers at companies that have hired people with criminal backgrounds rated these employees’ quality of work as comparable to those without criminal records.
How Criminal Record Expungement Laws Can Create Liability for Employers
Dealing with sealed or expunged records can be tricky for employers conducting background screens because of differences in state laws and the presence of records tagged for sealing or expungement online or in databases that may be scooped up in bulk by data providers or consumer reporting agencies. There have been a number of lawsuits filed against employers for making employment decisions based on sealed or expunged records.
Generally, all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning an individual’s apprehension, arrest, detention, or trial on a criminal offense can be expunged. However, each state has rules about what can and can’t be expunged. For example, in most states, arrests and convictions on serious, violent felonies usually can’t be expunged or sealed, and expungement is available only for first-time misdemeanors or non-violent felonies.
As a result of the growing number of states adopting automatic criminal expungement measures, employers must understand that something that may have been reported in the past could now appear as clear on future background checks. Additionally, if an expunged record erroneously appears on a background check and an employer makes a hiring decision based on knowledge of the expunged conviction, the employer can be held liable for it. The same goes for terminating employees for criminal records that have been (or should have been) expunged; it can potentially open up an employer to a wrongful termination lawsuit.
In order to ensure compliance with federal law and changes in state laws, a reputable background screening vendor can be an employer’s best partner. Vendors like Cisive have protocols in place to ensure that positive criminal records results are confirmed at the source. A background screening vendor should conduct primary source verification of the results, giving employers confidence in their decision-making.