This is an all-too-common issue for many of my clients.  We successfully sealed their criminal conviction and closed their case; however, months later, clients call back because they applied for a job, and wrote on the application that they did not have any criminal convictions because their conviction was sealed.  The employer runs the background check, but the conviction is still popping up as if it was never sealed.  Now the employer thinks the applicant lied on the job application and that they are a criminal.  Not a good first impression to make for a potential employer.

Why does a sealed record sometimes show up on background checks? 

When you seal your record, the court clerk removes all physical documents associated with your case into a confidential area.  Then the clerks send your Order to Seal to the Arkansas Crime Information Center, they update your records in their system by putting a box around your record to show that it is sealed (ACIC reports are confidential). The court clerk also removes your case (or your name if multiple defendants in the same case) from Court Connect so the public no longer has online access to your record.  Some entities still have access to your sealed record such as:

• The Defendant (you) & your attorney

• The prosecutor & judge on a subsequent conviction

• The victim (if any)

• Arkansas Crime Information Center (ACIC) & criminal justice agencies

• Certain Employers:

  • Any employer that deals with “at-risk populations” like children, elderly, sick, or disabled people, including but not limited to nursing homes, healthcare providers, schools & daycares

  • Military

  • Some state & federal government agencies

  • The Arkansas Nursing Certification Board

Many places can see a sealed record, but most private employers and housing providers should not.   When you apply for a job with a private employer, they usually run a background check.  This background check usually comes from a private background check company that the employer must pay. In America, there are estimated to be over 2,000 different private background check companies, some of which are very small mom-and-pop companies. Some of these companies operate by employing a Runner.  Each Runner covers a few counties. The Runner’s job is to go by every court in their counties once per week.  The Runner pays the court clerk and picks up a copy of every criminal court document that was filed in that court for the previous week.  All of those filed documents are sent to the private background check company, who updates their records every week based on all of the criminal court documents that the Runner picked up.  This method or a similar, more technologically advanced method, is how the private background check company originally documented your conviction and put the conviction on your background check criminal report.  

 What should I do if a sealed conviction shows up on a background check? 

When you apply for a job after your record is sealed, you can legally state on the application that you have no convictions.  When the background check shows your conviction to the employer, then the employer is upset that you have a conviction and sometimes even more upset because they think you lied on your application and are a dishonest person.

When you apply for a job, the employer must ask your permission to run a background check.  If the employer makes a decision based on that criminal background check, the employer must notify you, the employer must give you information on how to obtain the background check criminal report, and you are allowed to dispute this report.  These rights are provided under the Fair Credit Reporting Act (FCRA).

If the background check is still showing a criminal conviction that you already sealed, then you need to get the contact information for the private background check company from the employer.   You should contact the background check company by calling and informing them that your record is actually sealed.  They will request that you send them a copy of your signed and filed Order Seal so they can update your records.  The employer should then run another background check because you disputed the original report. 

Unfortunately, sometimes by this point, it may be too late to salvage the job.  The employer has a bad taste in their mouth from the perceived dishonesty on your application and because the employer cannot magically forget that they saw the conviction.   The employer is supposed to consider other factors too, such as: How old was the conviction? Have you had other successful jobs or similar employment-type opportunities? Did you submit recommendation letters and references?  Whether the potential job is related to the nature of your conviction.  These rights are provided under Title VII of the Civil Rights Act.  If you feel you are being discriminated against by a potential employer, then you should contact your local Equal Employment Opportunity Commission (“EEOC”) and file a complaint. 

What can I do to prevent a sealed conviction from showing up on future background checks?

In order to avoid the above situation, you need to get out in front of this by notifying the private background check companies that your record is sealed BEFORE you complete that job application.  But there are over 2,000 private background check companies in America.  Finding them and sending a copy of your Order Seal to each and every company would be a full-time job by itself. 

Thankfully, there is a not-for-profit organization that provides this service for free.  The Foundation for Continuing Justice at www.continuingjustice.org will provide a copy of your Order to Seal to several hundred of the larger private background check companies in America.  You can go to their website and complete a criminal database update form and submit your Order Seal online or you can complete the physical form and mail in your Order Seal.  They estimate that it can take up to 180 days (6 months) for the entire process to be completed.   If you do not want to wait this long, then you can pay a few hundred dollars for their premium service and that will shorten the time.  I am not associated with this organization in any way, but I have sent hundreds of clients the Criminal Database Update form so they can start that process.

Keep in mind that this will not cover all private background check companies, only several hundred.  There are potentially still over a thousand smaller background check companies that are not notified, so you need to remember how to dispute an incorrect background check criminal report.

By following these steps after sealing your criminal record, you can increase your chances of finding employment or housing.  Remember, private background check companies do not update their records when the court seals your criminal record.  You should complete the Criminal Database Update form through the Foundation for Continuing Justice so background check companies update their records BEFORE you apply for a job.  And when you apply for a job, if a background check is run and your conviction is still popping up, then you now know how to dispute that report and force them to update their records.

If you need help sealing your criminal record, sign up for one of our Record Sealing Clinics (www.arkansaslegal.org/events) or call our helpline at 501-376-3423, select option 3.

AUTHOR: RYAN HILL, STAFF ATTORNEY FOR THE CENTER FOR ARKANSAS LEGAL SERVICES