Your Criminal Record Was Expunged. Now What?
As indicated on our FAQ page, private companies, and even government agencies, sometimes report prior arrests and convictions even after those events have been expunged. Adding insult to injury, the “facts” that they report are often wrong. In view of these possibilities, job applicants confronted with questions about expunged events must proceed with caution.
When filling out job applications, it is first necessary to determine whether its questions are being answered under oath. If the answers must be notarized, they are under oath. If the form states that answers are being provided “under penalty of perjury,” that is another indication. Private company forms that are not notarized are typically not under oath. Determination of whether answers are being given under oath may require careful examination of the form. A lawyer can help.
In many instances, applicants may, and should, deny existence of expunged events, even when answers to such questions are given under oath. Question 8 on our FAQ Page goes into much detail about how to analyze such questions. Even for responses not under oath, practical considerations exist. Risks exist in divulging. Risks also exist in not divulging.
The risk of divulging is that your candor may cause the company to reject your application where your application would otherwise have been accepted. The risk of not divulging is that, if the company learns of the expunged event, termination (or refusal to hire) becomes a real possibility. So how to respond?
When answering not under oath, “how to respond” requires balancing the risk of divulging against the risk of not divulging. When the expunged event is likely to not be discovered, the risk of divulging will typically outweigh the risk of not divulging. When the expunged event is likely to be discovered, the risk of not divulging will typically outweigh the risk of divulging. Nobody can guarantee that expunged events will not be discovered. Generally speaking, likelihood that the expunged event will be discovered increases with the sensitivity of the position, and diminishes with passage of time.
When background reporting companies divulge expunged information, whether accurately or not, it is often because no one notified these companies that the records were expunged. Notified or not, the federal Fair Credit Reporting Act requires that consumer reports adopt reasonable procedures to verify accuracy of information that they report. Those procedures would include verification that information that it provides is current. If those companies obtained their information relatively recently, they may interpret “reasonable procedures” to not require an additional verification. For that reason, some persons may seek an extra layer of protection.
This “extra layer of protection” provides benefits beyond those specified in the federal Fair Credit Reporting Act. That Act defines consumer reports as reports used for very specific purposes. Those purposes include, among others, employment background checks and, of course, applications for credit. However, the Act does not limit divulgence of information when the purpose of the inquiry is something other than that contained within the specific definition of “consumer report.” Furthermore, the Act defines areas specifically excluded from the definition of consumer report. The Act thus provides persons with expunged records no protection from such revelation.
To help address these loopholes, Expungement Lawyers in New Jersey™ has identified five companies. We occasionally refer to these companies as “The Big Five.” Three of these companies are the major credit reporting agencies themselves. The other two are all-encompassing data collecting and reporting machines. Between them, these companies account for a high percentage of private criminal history background reports.
Persons whose criminal records have been expunged can formally advise these companies of the expungement. This site gives the names and addresses of those companies on a separate page. For those who prefer to not do it themselves, Expungement Lawyers in New Jersey™ offers that service. This notification goes beyond the basic expungement process. It is an optional procedure available after New Jersey State Police advise that it has processed the expungement Order. Another page on this site details the fees that Expungement Lawyers in New Jersey™ charge for this additional service.
There is also a private non-profit organization that provides notifications at no charge at all. That organization is The National Expungement Clearing House. Its list of major data providers may be even more comprehensive than the list that we provide on this site. Persons seeking to reach private databases are encouraged to explore their services.
When Expungement Lawyers in New Jersey™ issues the notifications, they do so by certified mail, return receipt requested. These notifications include the client's date of birth and social security number, for positive identification. The notifications also include copies of the expungement order and the original expungement petition. Expungement Lawyers in New Jersey™ provides to users of this service copies of the certified mail return receipts, or other proof of delivery.
The other companies sometimes (certainly not always) acknowledge the request. Expungement Lawyers in New Jersey™ cannot guarantee that they comply. However, the companies have a strong incentive to do so. The Fair Credit Reporting Act regulates credit reporting companies. The Act imposes substantial penalties upon credit reporting agencies that intentionally, or even negligently, furnish inaccurate information in consumer reports. Under Section 603(d)(1)(B), records of criminal arrests or convictions, when used to establish eligibility for employment, are included in what the Act defines as consumer reports.
The InternetLet's begin with Google. Helpful information about how Google processes web information is on one of its privacy pages. As explained there:
|Like all search engines, Google is a reflection of the content and information publicly available on the web. Search engines do not have the ability to remove content directly from the web, so removing search results from Google or another search engine leaves the underlying content unaffected. If you want to remove something from the web, you should contact the webmaster of the site and ask him or her to make a change. Once the content has been removed and Google's search engine crawl has visited the page again, the information will no longer appear in Google's search results.|
Another Google page discusses urgent removal requests.
There are companies that claim they can restore one's reputation on the internet, following negative publicity. Neither Expungement Lawyers in New Jersey™ nor the Law Offices of Allan Marain have any connection with these companies. Expungement Lawyers in New Jersey™ provide links, below, to some of their sites. We provide these links solely as a service to our viewers. We receive no compensation for listing them. Expungement Lawyers in New Jersey™ compiles users' experiences with these companies on a separate page.
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