What Your Background Checks May Not Be Telling You

A criminal background check is more or less considered a standard part of the hiring process these days. Business owners want to make smart decisions on who they employ to avoid a potentially devastating economic impact of a bad hire. But are these background checks really telling the whole story?

Turns out, maybe not. Expungement or sealing, are the acts of removing your criminal history is erased from the public record, which then means it won’t show up on a background check. While not every crime is eligible to be wiped and you are only able to pursue this option one time in your life, this could prevent business owners from really knowing who they are considering giving a job to.

There is a difference between expungement and sealing. Expungement is the process used to erase an entry on your criminal record that did not result in a conviction. So a not-guilty verdict or dismissed case that still featured a criminal arrest could be hidden from a potential employer in this way.

Sealing involves cases in which the individual was convicted. Florida laws do prohibit the sealing of certain types of convictions, most notably serious felony crimes like murder, rape, arson, kidnapping, carjacking, and lots more. However, entering into a plea for a less-serious crime could result in the person’s actions then being able to be sealed at a later date. For example, an aggravated DUI charge (a felony) could be entered as reckless driving, which would then enable the guilty party to seal their record at a later date.

This becomes even trickier for employers because once a record is sealed or expunged, the individual is allowed to legally declare that they have no criminal history; a sealed or expunged record is completely gone in the eyes of the law, as though it never existed. Furthermore, employers are forbidden from asking the applicant about any sealed or expunged records under law.

The only exceptions to this rule have to do with employment in certain positions, including a criminal justice agency, disabled adults, or any job with children, as well as those seeking admission to The Florida Bar.

Attorney Kate Mesic wrote a blog on this topic entitled “What Your Employee Background Checks May Not Be Telling You” for Advantage Business Magazine that was published on December 27^th, 2016. As a Jacksonville employment attorney who also handles criminal cases, her experience and insight on this particular topic make her a valuable ally for both job seekers looking to obtain an expungement or sealed record as well as business owners who wish to make good hiring decisions.