It is rare today to find a company that does not perform criminal background checks on potential employees before offering a position. In many states an employer can be found liable for hiring someone who injures a co-worker or customer when the employer knew or should have know that the employee had a history of harming others. This has made employers cautious and encouraged them to thoroughly vet potential new hires.
Unfortunately too many people have had brushes with the criminal justice system. For example, in Georgia 3.8 million people (⅓ of the state’s population) have a criminal record of some kind. If you have ever been arrested for a crime where the police took fingerprints then you are in “the system”. Even if you were never charged with anything the arrest may still come up when employers do a check.
So what can you do to if you have something that will come up in a criminal background check? Even if it was an arrest for something that you didn’t do and for which you weren’t charged it can still impact your ability to get a job or rent an apartment.
Where Information In A Criminal Background Check Comes From
In examining the available options it is helpful to first look at the two main sources of information for criminal background checks. The first source is the official repository for criminal background information. Most states have their own agency responsible for official criminal history information. In Georgia for example there is the Georgia Crime Information Center (GCIC). These state agencies coordinate the information from all the cities and counties so it is available from a central location. The federal version is the National Crime Information Center. The official repositories are mostly for law enforcement use but many times it is possible for anybody to access the information for a small fee. These state and federal agencies are usually regulated by a number of laws that provide for procedures that allow people to check their official criminal history and make corrections if there are any errors.
The second main source for criminal history information are private background check companies. There are thousands of companies that provide criminal history information and they are for the most part lightly regulated. These companies get their information from many different sources including county clerk offices and jails. Some states have laws that regulate these private background check companies. The main law federal law policing the private background check companies is the Fair Credit Reporting Act (FRCPA). It is common for the private background check company reports to contain inaccuracies. It is also possible that private background checks might report crimes that have been expunged from the official records.
How Do I Remove Crimes From My Record?
Each state has different laws which govern what procedures can be used to remove old convictions, non-convictions (arrests, dismissals etc.), and other criminal incidents from the record. What can be removed from the record depends on state law. For example, in Georgia felonies can never be expunged and only some misdemeanors can be expunged from the record. The crimes that can be expunged or removed may depend on how old one was when the crime was committed and if it was a first offence.
The main methods of removing or covering past criminal incidents are expungement, sealing, and pardons. Expungement is where a criminal incident is removed from the record. A pardon typically changes the disposition (the outcome reported in the record) from “convicted”, “guilty” etc. to “pardoned”. Usually a pardon does not remove the incident from your criminal record. Sealing a record is another way to prevent a criminal incident from appearing on a background check. When a record is sealed it is not necessarily removed from the record. The incident will usually just not appear on a background check.
What Can I Say To Employers About An Incident Removed From My Record?
In the employment context it is not only important to remove or prevent a criminal incident from appearing on a background check. It is also important that a job seeker can legally say on an employment application that they have not been arrested, convicted etc. of the incident that has been removed from the background check.
In some states the laws prevents an employer from using expunged or sealed criminal incidents in making an employment decision. For example New York allows for a criminal incident to be sealed. Once the record is sealed is illegal for most employers to ask about or use sealed or confidential information in making an employment decision. This might also mean that if an employment application asks if the applicant has ever been arrested or convicted of a crime the applicant does not need to mention a sealed arrest or conviction. Some states don’t have laws preventing an employer from using a sealed or expunged criminal incidents. In Georgia the law does not allow an individual to deny an expunged criminal incident.
This all means that a person who is concerned about what their criminal background check might show, or a person who has had problems getting jobs in the past because of their criminal background need to talk to an attorney licensed to practice in their state. The laws in each of the states can vary widely. If you are in Georgia contact Attorney Benjamin Kandy to discuss your options.