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Q: Can employers access my expunged records? ( Answered 5 out of 5 stars,   1 Comment )
Question  
Subject: Can employers access my expunged records?
Category: Relationships and Society > Law
Asked by: mrgutfreund-ga
List Price: $50.00
Posted: 16 Jun 2006 15:25 PDT
Expires: 16 Jul 2006 15:25 PDT
Question ID: 738794
I recently completed my master's degree and am entering the job
market.  I got an offer of employment from a large investment bank on
Wall Street recently, but as happy as I should be about this, there is
a point of concern I'd like to settle here.

You see, as part of their hiring practice, the firm wants to conduct a
background check on me, including a criminal history check.

In my earlier (immature) years of college (less than 5 years ago), I
was charged with a misdemeanor for an act of sheer stupidity, but
later got the conviction EXPUNGED from my records.  Now, I've looked
up some facts on expungement but I still have a major concern.  Here
are the major points I want answered:

- When a firm conducts a background check, will they be able to access
my expunged records?
- To what extent is my 'criminal history,' if you will, concealed from
employers under expungement?
- When asked (either on paper or orally) about previous convictions,
to what extent can I deny previous convictions?
- How likely is it that a large firm will find out about my expunged record?

If you need more information to answer the question, please ask.  I'd
like, preferably, all of these parts of my questions answered as soon
as possible, please.  In return, I am offering a generous amount. 
Thanks for your help!

Clarification of Question by mrgutfreund-ga on 16 Jun 2006 15:32 PDT
The state of the conviction (and subsequent expungement) was Arkansas.
Answer  
Subject: Re: Can employers access my expunged records?
Answered By: tutuzdad-ga on 16 Jun 2006 16:16 PDT
Rated:5 out of 5 stars
 
Dear mrgutfreund-ga; 

Thank you for allowing me to answer your interesting question. You
will note our disclaimer that prevents us from offering legal advice.
What we do in these instances is provide you with information which is
publicly accessible as a matter of published law. As it turns out I am
quite familiar with the law, and in particular the Arkansas statutes
since this is where I have been in law enforcement for more than 20
years. With that in mind let me point you to the most authoritative
source, short of an actual attorney - the Arkansas state statutes:

In the state of Arkansas the legal definition of ?expunge? is ?to
destroy?.  The answer to your question depends on what the person
applies for. If the person is applying for a position under the
auspices of the state Board of Education or as a Social Worker,
certain convictions are indeed viewable to the prospective employer on
a background check.

9-27-309(b)(3) Confidentiality of Records
http://www.arkleg.state.ar.us/NXT/gateway.dll/ARCode/title08655.htm/subtitle09189.htm/chapter09238.htm/subchapter09245/section09254.htm

17-103-307. Criminal background checks.
http://www.arkleg.state.ar.us/NXT/gateway.dll/ARCode/title20985.htm/subtitle22198/chapter22922.htm/subchapter22938/section22945.htm

Otherwise, all records may be closed and confidential within the
discretion of the circuit court and are not retrievable on a routine
employment background check.

?(a) An individual whose record has been expunged in accordance with
the procedures established by this subchapter shall have all
privileges and rights restored and shall be completely exonerated, and
the record which has been expunged shall not affect any of his or her
civil rights or liberties unless otherwise specifically provided by
law.
(b)  Upon the entry of the uniform order to seal records of an
individual, the individual's underlying conduct shall be deemed as a
matter of law never to have occurred, and the individual may state
that no such conduct ever occurred and that no such records exist.?

16-90-902. Effect of expungement.
http://www.arkleg.state.ar.us/NXT/gateway.dll/ARCode/title18300.htm/subtitle19903/chapter20139.htm/subchapter20227/section20229.htm

?Well?, you may ask, ?the check is being conducted in another state.
What impact does this have??

Answer:  None

If an Arkansas record is expunged Arkansas it no longer exists in
terms of accessibility to the general public except as outlined in the
sensitive positions I mentioned, as provided by state law. Therefore
the conviction is not available for retrieval. It matters no what New
York law says, because New York has no jurisdictional control over the
Arkansas court that ordered the record ?destroyed?. Criminal
convictions, especially those involving a measure of fraud or
dishonesty, can indeed have a negative impact on some banking jobs IF
they are still on your record. Once they are expunged though, they?re
gone for all intents and purposes except in instances where one is
applying for licensure in the social work, child care, and teaching
fields etc.

I hope you find that my answer exceeds your expectations. If you have
any questions about my research please post a clarification request
prior to rating the answer. Otherwise I welcome your rating and your
final comments and I look forward to working with you again in the
near future. Thank you for bringing your question to us.

Best regards;

Tutuzdad-ga ? Google Answers Researcher


[INFORMATION SOURCES]

Defined above

[SEARCH STRATEGY]


SEARCH ENGINE(S) USED:

Google ://www.google.com
 

[SEARCH TERMS USED]

ARKANSAS

EXPUNGE

EXPUNGEMENT

RECORDS

BACKGROUND

CHECK

EMPLOYMENT

CONFIDENTIALITY

LAW

CODES

STATUTE

LEGISLATURE

Request for Answer Clarification by mrgutfreund-ga on 16 Jun 2006 16:31 PDT
Thank you so much.  One thing:  You didn't mention anything about the
background-check companies that claim to have access to expunged
records.  That is a major point of stress for me...

Request for Answer Clarification by mrgutfreund-ga on 16 Jun 2006 16:35 PDT
Also, the links you posted are not working for me.  I get the
following error message, on both FireFox and InternetExplorer:

System Message

Unable to retrieve document
The document you requested could not be retrieved.

Please contact the site administrator to report this problem.

Details

Value: 0x04D61925 
Context: Document failed to process

Clarification of Answer by tutuzdad-ga on 16 Jun 2006 16:53 PDT
There are ""services" that claim to do a variety of things. Some of
them are simply lying and others perhaps use unscrupulous methods. The
fact remains that an expungment, under the law, provides a reasonable
expectation of privacy:

"...all privileges and rights restored and shall be completely exonerated, and
the record which has been expunged shall not affect any of his or her
civil rights or liberties unless otherwise specifically provided by
law.

Upon the entry of the uniform order to seal records of an individual,
the individual's underlying conduct shall be deemed as a matter of law
never to have occurred, and the individual may state that no such
conduct ever occurred and that no such records exist.?

It is highly unlikley that a reputable Wall Street firm would risk
violating your rights under the Federal Privacy Act and place
themselves in jeopardy of several liability. If they do you would
certainly want to consult an attorney about the legal recourse in
response to your violated rights - and lo, they are severe.

As for the links, or if you wish to search for other statutory
information on your own, simply go to this database provided as a
public service by the Arkansas legislature and type in the statute
numbers:

9-27-309 - Confidentiality of Records

17-103-307 - Criminal background checks

16-90-902 - Effect of expungement

You will find the database here:
http://www.arkleg.state.ar.us/

-- Click on ARKANSAS CODE on the left margin.
-- Then enter the statute number in the SEARCH CODE field.





In the event that still does not work for you, here are the statutes
in their entirety:


9-27-309. Confidentiality of records.

(a)  All records may be closed and confidential within the discretion
of the circuit court, except:
    (1)  Adoption records shall be closed and confidential as provided
in the Revised Uniform Adoption Act, as amended,  9-9-201 et seq.;

(2)  Records of delinquency adjudications for which a juvenile could
have been tried as an adult shall be made available to prosecuting
attorneys for use at sentencing if the juvenile is subsequently tried
as an adult or to determine if the juvenile should be tried as an
adult; and

(3)  Records of delinquency adjudications for a juvenile adjudicated
delinquent for any felony or a Class A misdemeanor wherein violence or
a weapon was involved shall be made available to the Arkansas Crime
Information Center.

(b)(1)(A)  Records of delinquency adjudications for which a juvenile
could have been tried as an adult shall be kept for ten (10) years
after the last adjudication of delinquency or the date of a plea of
guilty or nolo contendere or a finding of guilt as an adult.

(B)  Thereafter they may be expunged.  

(2)  The court may expunge other juvenile records at any time and
shall expunge all the records of a juvenile upon his or her
twenty-first birthday, in other types of delinquency,
dependency-neglect, or families in need of services cases.

(3)  For purposes of this section, "expunge" means to destroy.  

(c)  Records of juveniles who are designated as extended juvenile
jurisdiction offenders shall be kept for ten (10) years after the last
adjudication of delinquency, date of plea of guilty or nolo
contendere, or finding of guilt as an adult, or until the juvenile's
twenty-first birthday, whichever is longer.

(d)(1)  If an adult criminal sentence is imposed on an extended
juvenile jurisdiction offender, the record of that case shall be
considered an adult criminal record.

(2)(A)  The court shall enter an order transferring the juvenile
record to the clerk who is the custodian of adult criminal records.

(B)  The clerk shall assign a criminal docket number and shall
maintain the file as if the case had originated as a criminal case.

(e)  Nothing in this section applies to or restricts the use or
publication of statistics, data, or other materials that summarize or
refer to any records, reports, statements, notes, or other information
in the aggregate and that do not refer to or disclose the identity of
any juvenile defendant in any proceeding when used only for the
purpose of research and study.

(f)  Nothing in this subchapter shall preclude prosecuting attorneys
or the court from providing information, upon written request,
concerning the disposition of juveniles who have been adjudicated
delinquent to:

(1)  The victim or his or her next of kin; or  

(2)  The school superintendent of the school district in which the
juvenile is currently enrolled.

(g)  When a juvenile is adjudicated delinquent for an offense for
which he or she could have been charged as an adult or for unlawful
possession of a handgun,  5-73-119, the prosecuting attorney shall
notify the school superintendent of the school district in which the
juvenile is currently enrolled.

(h)  Information provided pursuant to subsections (f) and (g) of this
section shall not be released in violation of any state or federal law
protecting the privacy of the juvenile.

(i)(1)  If a juvenile is arrested for unlawful possession of a firearm
under  5-73-119, an offense involving a deadly weapon under 
5-1-102, or battery in the first degree under  5-13-201, the
arresting agency shall as soon as practical and with all reasonable
haste cause written notification of the arrest to be given to the
superintendent of the school district in which the juvenile is
currently enrolled.

(2)(A)  The superintendent shall then notify the principal and the
resource officer of the school in which the juvenile is currently
enrolled.

(B)  The arrest information shall be treated as confidential
information and shall not be disclosed by the superintendent to any
person other than the principal and resource officer, who shall also
maintain the information as confidential.

(3)  The arrest information shall be used by the school only for the
limited purpose of obtaining services for the juvenile or to ensure
school safety.


History. Acts 1989, No. 273,  8; 1993, No. 535,  3; 1993, No. 551, 
3; 1993, No. 758,  4; 1994 (2nd Ex. Sess.), No. 69,  1; 1994 (2nd
Ex. Sess.), No. 70,  1; 1999, No. 1192,  13; 1999, No. 1451,  1;
2001, No. 1268,  1; 2003, No. 1166,  6.

=====================================



17-103-307. Criminal background checks.

(a)  Each first-time applicant for a license issued by the Arkansas
Social Work Licensing Board shall be required to apply to the
Identification Bureau of the Department of Arkansas State Police for a
state and national criminal background check, to be conducted by the
Federal Bureau of Investigation.
    (b)  The check shall conform to the applicable federal standards
and shall include the taking of fingerprints.

(c)  The applicant shall sign a release of information to the board
and shall be responsible to the Department of Arkansas State Police
for the payment of any fee associated with the criminal background
check.

(d)  Upon completion of the criminal background check, the
Identification Bureau of the Department of Arkansas State Police shall
forward to the board all information obtained concerning the applicant
in the commission of any offense listed in subsection (f) of this
section.

(e)  At the conclusion of any background check required by this
section, the Identification Bureau of the Department of Arkansas State
Police shall promptly destroy the fingerprint card of the applicant.

(f)  Except as provided in subdivision (m)(1) of this section, no
person shall be eligible to receive or hold a license issued by the
board if that person has pleaded guilty or nolo contendere to or been
found guilty of any of the following offenses by any court in the
State of Arkansas or of any similar offense by a court in another
state or of any similar offense by a federal court:

(1)  Capital murder as prohibited in  5-10-101;  

(2)  Murder in the first degree as prohibited in  5-10-102 and murder
in the second degree as prohibited in  5-10-103;

(3)  Manslaughter as prohibited in  5-10-104;  

(4)  Negligent homicide as prohibited in  5-10-105;  

(5)  Kidnapping as prohibited in  5-11-102;  

(6)  False imprisonment in the first degree as prohibited in  5-11-103;  

(7)  Permanent detention or restraint as prohibited in  5-11-106;  

(8)  Robbery as prohibited in  5-12-102;  

(9)  Aggravated robbery as prohibited in  5-12-103;  

(10)  Battery in the first degree as prohibited in  5-13-201;  

(11)  Aggravated assault as prohibited in  5-13-204;  

(12)  Introduction of a controlled substance into the body of another
person as prohibited in  5-13-210;

(13)  Terroristic threatening in the first degree as prohibited in  5-13-301;  

(14)  Rape as prohibited in  5-14-103;  

(15)  Sexual indecency with a child as prohibited in  5-14-110;  

(16)  Sexual assault in the first degree, second degree, third degree,
and fourth degree as prohibited in  5-14-124 - 5-14-127;

(17)  Incest as prohibited in  5-26-202;  

(18)  Offenses against the family as prohibited in  5-26-303 - 5-26-306;  

(19)  Endangering the welfare of an incompetent person in the first
degree as prohibited in  5-27-201;

(20)  Endangering the welfare of a minor in the first degree as
prohibited in  5-27-203;

(21)  Permitting abuse of a child as prohibited in  5-27-221(a)(1) and (3);  

(22)  Engaging children in sexually explicit conduct for use in visual
or print media, transportation of minors for prohibited sexual
conduct, pandering or possessing visual or print medium depicting
sexually explicit conduct involving a child, or use of a child or
consent to use of a child in a sexual performance by producing,
directing, or promoting a sexual performance by a child as prohibited
in  5-27-303 - 5-27-305, 5-27-402, and 5-27-403;

(23)  Felony adult abuse as prohibited in  5-28-103;  

(24)  Theft of property as prohibited in  5-36-103;  

(25)  Theft by receiving as prohibited in  5-36-106;  

(26)  Arson as prohibited in  5-38-301;  

(27)  Burglary as prohibited in  5-39-201;  

(28)  Felony violation of the Uniform Controlled Substances Act, 
5-64-101 - 5-64-608, as prohibited in  5-64-401;

(29)  Promotion of prostitution in the first degree as prohibited in  5-70-104;  

(30)  Stalking as prohibited in  5-71-229;  

(31)  Criminal attempt, criminal complicity, criminal solicitation, or
criminal conspiracy as prohibited in  5-3-201, 5-3-202, 5-3-301, and
5-3-401, to commit any of the offenses listed in this subsection;

(32)  Computer child pornography as prohibited in  5-27-603; and  

(33)  Computer exploitation of a child in the first degree as
prohibited in  5-27-605.

(g)(1)  The board may issue a six-month nonrenewable letter of
provisional eligibility for licensure to a first-time applicant
pending the results of the criminal background check.

(2)  Except as provided in subdivision (m)(1) of this section, upon
receipt of information from the Identification Bureau of the
Department of Arkansas State Police that the person holding such a
letter of provisional licensure has pleaded guilty or nolo contendere
to or been found guilty of any offense listed in subsection (f) of
this section, the board shall immediately revoke the provisional
license.

(h)(1)  The provisions of subsection (f) and subdivision (g)(2) of
this section may be waived by the board upon the request of:

(A)  An affected applicant for licensure; or  

(B)  The person holding a license subject to revocation.  

(2)  Circumstances for which a waiver may be granted shall include,
but not be limited to, the following:

(A)  The age at which the crime was committed;  

(B)  The circumstances surrounding the crime;  

(C)  The length of time since the crime;  

(D)  Subsequent work history;  

(E)  Employment references;  

(F)  Character references; and  

(G)  Other evidence demonstrating that the applicant does not pose a
threat to the health or safety of children.

(i)  Any information received by the board from the Identification
Bureau of the Department of Arkansas State Police pursuant to this
section shall not be available for examination except by the affected
applicant for licensure or his or her authorized representative or the
person whose license is subject to revocation or his or her authorized
representative. No record, file, or document shall be removed from the
custody of the department.

(j)  Any information made available to the affected applicant for
licensure or the person whose license is subject to revocation shall
be information pertaining to that person only.

(k)  Rights of privilege and confidentiality established in this
section shall not extend to any document created for purposes other
than this background check.

(l)  The board shall adopt the necessary rules and regulations to
fully implement the provisions of this section.

(m)(1)  For purposes of this section, an expunged record of a
conviction or plea of guilty or nolo contendere to an offense listed
in subsection (f) of this section shall not be considered a
conviction, guilty plea, or nolo contendere plea to the offense unless
the offense is also listed in subdivision (m)(2) of this section.

(2)  Because of the serious nature of the offenses and the close
relationship to the type of work that is to be performed, the
following shall result in permanent disqualification:

(A)  Capital murder as prohibited in  5-10-101;  

(B)  Murder in the first degree as prohibited in  5-10-102 and murder
in the second degree as prohibited in  5-10-103;

(C)  Kidnapping as prohibited in  5-11-102;  

(D)  Rape as prohibited in  5-14-103;  

(E)  Sexual assault in the first degree as prohibited in  5-14-124
and sexual assault in the second degree as prohibited in  5-14-125;

(F)  Endangering the welfare of a minor in the first degree as
prohibited in  5-27-203 and endangering the welfare of a minor in the
second degree as prohibited in  5-27-204;

(G)  Incest as prohibited in  5-26-202;  

(H)  Arson as prohibited in  5-38-301;  

(I)  Endangering the welfare of an incompetent person in the first
degree as prohibited in  5-27-201; and

(J)  Adult abuse that constitutes a felony as prohibited in  5-28-103.  


History. Acts 1999, No. 1122,  1; 2003, No. 1087,  17; 2003, No.
1384,  1; 2005, No. 1923,  4.

=====================================

16-90-902. Effect of expungement.

(a)  An individual whose record has been expunged in accordance with
the procedures established by this subchapter shall have all
privileges and rights restored and shall be completely exonerated, and
the record which has been expunged shall not affect any of his or her
civil rights or liberties unless otherwise specifically provided by
law.
    (b)  Upon the entry of the uniform order to seal records of an
individual, the individual's underlying conduct shall be deemed as a
matter of law never to have occurred, and the individual may state
that no such conduct ever occurred and that no such records exist.


History. Acts 1995, No. 998,  7.




I hope this clarifies sufficiently.

Regards;
tutuzdad-ga

Request for Answer Clarification by mrgutfreund-ga on 16 Jun 2006 17:26 PDT
One last request for clarification.  In regards to the following paragraphs:

    (a)  An individual whose record has been expunged in accordance with
the procedures established by this subchapter shall have all
privileges and rights restored and shall be completely exonerated, and
the record which has been expunged shall not affect any of his or her
civil rights or liberties unless otherwise specifically provided by
law.
    (b)  Upon the entry of the uniform order to seal records of an
individual, the individual's underlying conduct shall be deemed as a
matter of law never to have occurred, and the individual may state
that no such conduct ever occurred and that no such records exist.

It does not explicitly say that the record can still show some
indication of a conviction.  Is it possible for something to still
show up on the record, to the extent that it may be marked as
"dismissed" or something equally appropriate?

Clarification of Answer by tutuzdad-ga on 16 Jun 2006 18:58 PDT
"Upon the entry of the uniform order to seal records of an individual,
the individual's underlying conduct shall be deemed as a matter of law
never to have occurred..."

Aside from having been both a patrol officer and detective for many
years, I was also the supervisor of a Police Communications center
from which these types of records are both entered and queried. I have
seen literally TEN OF THOUSANDS of criminal history records from the
National Drime Information Center (NCIC) and I have never seen a
single one that showed an expungement. These records are removed,
sealed, destroyed from routine retrieval. Even a person who, for
example, was once a felon and had his record expunged, even the police
will not see that conviction and consider him a felon in possession of
a firearm. Dismissals and nolle pros's (not prosecuted) cases are a
diferent matter entirely. In some instances those do show up on a
criminal history check but expunged records do not. In terms of depth,
the normal background check stops at a point where the common query
cannot see it - so deep in fact that even YOU could not win a bar bet
that you were once convicted on this type of background check alone.
State and Federally mandated checks that go deeper can sometimes
unseal these records, but usually only if the party being investigated
by a private entity gives his consent to such a check or if the
government does so by court order.

tutuzdad-ga
mrgutfreund-ga rated this answer:5 out of 5 stars
Great advice!  You really put my tensions at ease.  Thanks a lot.

Comments  
Subject: Re: Can employers access my expunged records?
From: mpnyc-ga on 09 Jul 2006 09:06 PDT
 
Hi, Im going through the same thing, I was a 'youthful offender' in CT
@ 10 yrs ago when i was stupid & 17 & now I have a background check
for a new job.  Everywhere I look it seems that i have nothing to
worry about as these are automatically expunged, i even ran a criminal
history check on myself & it came back 'no record found.'  Im still a
little nervous but was wondering how you made out, did it come back
clear for you? hope so, best of luck.

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