Criminal Record Expungement Still Causing Background Check Issues?
Licensed Michigan Background Check Investigators Explain Why that Might be Happening
In Michigan, like most states, there are ways for prior criminal offenders to have specific records expunged from their backgrounds. This creates a delicate and tricky situation for everyone involved; the offender, the lawyer they hired to expunge the records, background check companies and employers. The reason for this is that once records of an arrest, criminal proceeding, conviction and sentencing are created, they are very difficult to completely erase so that they cannot be located during a background check. There are really three controlling issues at play when it comes to expunged records still showing up on an applicant’s background check:
- Not all of the records with official government entities are taken out of public view once an expungement has taken place
- Background check companies do not have a way of knowing that the records they find are not supposed to be reported because of an expungement
- Third party data brokers have already purchased the records and are selling them to data vendors and non-government search databases
Records with Government Entities
These are databases maintained by government entities (state, federal and local) that we consider the most accurate sources of information. They are sometimes referred to as “direct from source data” or “first source data”. Any competent background check agency will only utilize these types of records. The downside can be cost and turnaround time, but not doing so sacrifices accuracy and completeness and in pre-employment screening, these records are the only ones that should be utilized when making a hiring decision based on an applicant’s background.
The issue with expunged records is that there are multiple places where these records get created and stored, all available to a diligent investigator with good intentions of thoroughly searching someone’s background. Below is a rough breakdown of the various places a background investigator can locate criminal records in Michigan. Most states are very similar in their processes and therefore have similar locations where records can be located.
Police reports -> Intake/Booking Information -> Jail Records -> District Court Records -> Circuit Court Records -> Michigan State Police Arrest and Conviction Abstract -> Michigan Department of Corrections Database -> Michigan Secretary of State.
Expunging records from all of these sources is nearly impossible and most attorney’s do so at the court level and/or with the Michigan State Police. That leaves a number of other locations still open for discovery of these records that can still effect an applicant going through the background check process.
This takes us into the second issue; when background check company discovers a record, but has no way to know if it has been expunged or not. This one is self-explanatory, but no company wants to disclose records that otherwise should not be divulged to an employer. The best-case scenario is that the investigator notes that parts of the record are not where they should be and reaches out to the applicant for documentation of a possible expungement. Unfortunately, even the best “.Gov” databases can be incomplete and missing information at times, so it is not uncommon to have a piece of the puzzle missing and have to locate records elsewhere, not immediately thinking that it could be because the record was expunged.
Third Party Data Brokers
The real issues for those with properly expunged records is when third party data brokers are involved with purchasing large sets of criminal data from various government entities. These records are usually bought in bulk and then stored internally with the individual private data broker companies. From there, they sell access to their data or re-sell the data altogether to other companies that either utilize the data as part of a large access point or sell the ability to search large quantities of records from multiple jurisdictions at one time, sometimes as part of what they market as a “national criminal history” database. (for information on the dangers of these types of insta-searches, click here). Once criminal records are purchased by these third parties, they are essentially “out there” and become far more difficult to have redacted. Some of these companies do allow some means to delete records from their databases with proper documentation, but getting to each of these vendors is difficult. The majority of applicants we work with who have legitimate expungements, but are still losing out on jobs because of the background check process are a direct result of the background check company utilizing one of these types of databases. A key problem being that even if an applicant can prove to an employer that a record was expunged, the employer has already seen the original conviction and can be biased by that improper data.
What can an applicant with an expungement do?
If you had a record expunged, but are nervous that an employer may still find the record or parts of the records due to any of the reasons mentioned above, you do have some options.
MichiganLegalHelp.Org has some excellent pages related to this topic. You can also consult your attorney to determine where he or she had the records expunged from to confirm that the main locations (the court system and the Michigan State Police) are covered. Have your expungement paperwork available for any issues and ask your potential employer for access to the background screening company before the searches take place. A reputable company will know how to handle this situation, look at your paperwork to ensure that the conviction you had expunged is not disclosed to the employer if it happens to be located during the course of the background check. If you are still unsure of what records are going to show up, Advanced Surveillance Group can conduct a background investigation on you to help you determine what records are still available and where those records are located so that you can target those entities for further removal.