Criminal Record as a Barrier to Employment: How Expungement and Record Sealing Can Help

A criminal record can follow a person long after a case has ended.

For job seekers, even an old arrest, dismissed charge, misdemeanor, or conviction can create an additional hurdle during the hiring process. Employers routinely conduct criminal background checks, and when a record appears, the employer may have to decide whether that information is relevant to the position and whether it can legally be considered.

Federal and state laws provide important protections for applicants with criminal histories. Employers generally cannot simply treat every criminal record as an automatic reason to reject someone. But there is an even more powerful possibility for people who qualify:

Clearing the record itself.

Depending on the state, the process may be called expungement, expunction, record sealing, set-aside, record clearance, or nondisclosure. The terminology and legal effects differ substantially from state to state, but the objective is similar: reduce or eliminate the ability of an old criminal record to interfere with employment and other opportunities.

For someone who is legally eligible, record clearing may be one of the most valuable steps they can take toward obtaining a genuine second chance.

Why Criminal Records Can Make Getting a Job More Difficult

Criminal background checks have become a routine component of hiring for many employers.

Depending on the job and jurisdiction, a background report may reveal convictions, pending cases, and other court or criminal-history information that an employer is legally permitted to receive.

That does not necessarily mean the applicant will be rejected.

The Equal Employment Opportunity Commission (EEOC) advises employers considering criminal history to evaluate whether the record is relevant to the job. Factors identified by the EEOC include:

• The nature and seriousness of the offense.
• How much time has passed since the offense or completion of the sentence.
• The nature and responsibilities of the job.

The EEOC also distinguishes between an arrest and a conviction. An arrest by itself does not establish that someone committed a crime.

Those protections matter.

But they do not change one practical reality: when a criminal record appears on a background check, somebody may have to evaluate it.

That can introduce uncertainty into the hiring process.

If an eligible record can instead be legally expunged or cleared so that it no longer appears in the ordinary criminal-record sources available for employment screening, that issue may never enter the hiring decision in the first place.

Employers Have Compliance Responsibilities When Using Criminal Background Checks

Employers obtaining employment background reports from a consumer reporting agency must comply with the federal Fair Credit Reporting Act (FCRA).

Among other requirements, employers generally must obtain appropriate authorization before procuring an employment background report.

If an employer is considering taking adverse action—such as denying employment—because of information contained in the report, the FCRA generally requires the employer to provide the applicant with a copy of the consumer report and a copy of A Summary of Your Rights Under the Fair Credit Reporting Act before the final adverse decision is made.

After adverse action is taken, additional notice requirements apply.

Employers must also comply with federal anti-discrimination laws administered by the EEOC. State and local laws can impose additional requirements, including restrictions on when criminal-history questions may be asked or when particular records may be considered.

These protections are important because they help ensure that criminal records are considered fairly and legally.

But there is another way to look at the issue from the job seeker's perspective.

The strongest criminal-record issue may be the one an employer never has to consider.

If a record has been lawfully expunged and removed from the sources that would otherwise supply that information, an ordinary employment background check should generally no longer present that record for an employer to evaluate.

That means there is no discussion about whether the offense is job-related.

There is no need for the employer to weigh how old the record is.

There is no need for the applicant to explain the circumstances surrounding it.

And there should be no adverse-action process based on that expunged record, because it should not have appeared in the employment background report in the first place.

There are important exceptions depending on the jurisdiction, type of record, government agency, licensing authority, or sensitive occupation involved. Applicants should therefore understand exactly what an expunction or sealing order does under the law that applies to them.

Even a Dismissed Case Can Continue to Create Problems

One of the biggest misconceptions surrounding criminal records is that a dismissed case automatically disappears.

It does not necessarily work that way.

An arrest may leave records in court systems, law-enforcement repositories, government criminal-history databases, and other sources even though the individual was never convicted.

Texas provides a good example.

According to Casey Davis, a criminal defense lawyer in Collin County, Texas who specializes in Assault Family Violence cases:

"If you are found “not guilty” or your case is dismissed in Texas, the record of the arrest, charge and disposition of the case will still appear on your Texas (TCIC) and National (NCIC) criminal history reports and in the county and district clerk’s computerized databases. Individuals often notice that the criminal information is still on their record when they apply for a job, fill out an apartment lease application or another person searches their name and finds the criminal record to use against them in a future civil court proceeding. If a Judge signs an Expunction Order, the State agencies must erase your records including fingerprints, booking-photo, arrest report, and DPS records so that it's as if the arrest never occurred," she said.

Learn more about expunction and nondisclosure from Casey Davis Law

Texas authorities similarly explain that an expunction can completely remove qualifying records, while an order of nondisclosure generally seals qualifying information from public view rather than completely destroying the record.

This distinction illustrates why people should not assume that a favorable outcome in a criminal case automatically erases every record associated with it.

Expungement Can Change the Hiring Equation

Imagine two scenarios.

In the first, an applicant has an old criminal record that appears during an employment background check.

The employer may now need to determine whether the record is legally reportable and legally usable, whether it relates to the responsibilities of the job, whether state or local restrictions apply, and whether an individualized assessment is appropriate.

If the employer decides that the information may result in the applicant not being hired, applicable FCRA adverse-action requirements may also come into play.

Now consider the second scenario.

The applicant qualified for expungement and successfully completed the process before applying for the job.

If the record has been legally cleared and properly removed from the sources searched during the employment background investigation, the employer generally does not receive that criminal record.

The decision can therefore focus on the applicant's qualifications, skills, experience, references, education, and ability to perform the job rather than an old criminal matter.

That is one reason record clearing can be so consequential.

There Is Evidence That Expungement Can Improve Employment Outcomes

Research has demonstrated just how meaningful record clearing may be.

A major Michigan study published in the Harvard Law Review examined people who obtained criminal-record expungements. Researchers J.J. Prescott and Sonja B. Starr found that recipients experienced a substantial improvement in employment and wage trajectories.

Within one year of expungement, average wages increased by more than 22% relative to the pre-expungement trajectory, with much of the improvement attributable to unemployed individuals finding work and minimally employed individuals obtaining steadier or better-paying employment.

The same study identified another important problem: relatively few people who were legally eligible actually obtained expungement. Researchers found that only about 6.5% of legally eligible individuals obtained an expungement within five years of becoming eligible.

Not every study has found identical labor-market effects, and the impact of record clearance can vary depending on the individual, jurisdiction, timing, employment history, and type of record. More recent economic research has found more limited average employment effects in certain settings.

Even so, clearing a legally eligible record can remove a direct source of information that might otherwise become part of an employment decision.

What About Nondisclosure or Record Sealing?

Not everyone qualifies for expungement.

In some jurisdictions, however, a person may qualify for another form of relief that limits public access to the record.

Texas calls one such remedy an Order of Nondisclosure.

An expunction and an order of nondisclosure are not the same thing.

Generally speaking:

• Expunction can result in qualifying criminal records being removed or destroyed as provided by law.
• Nondisclosure generally restricts qualifying criminal-history information from being disclosed to the public while allowing certain governmental, criminal-justice, licensing, or other authorized entities to retain access.

The Texas State Law Library explains that an order of nondisclosure does not completely eliminate the record. Instead, it seals qualifying information from public view, although specified agencies may continue to have access. In qualifying circumstances, an individual may also be permitted to deny the sealed matter on employment or housing applications.

For employment purposes, that can still be extremely valuable.

If an ordinary private employer cannot access the sealed information through the sources available to it, an old case may be far less likely to interfere with employment.

But because exceptions vary significantly by state, occupation, licensing authority, and type of background investigation, anyone relying on a nondisclosure or sealing order should obtain advice about the specific legal effect of that order.

Expungement Rules Are Different in Every State

There is no single nationwide rule determining which state criminal records can be expunged.

Eligibility may depend on factors including:

• Whether the case resulted in conviction, dismissal, acquittal, or deferred adjudication.
• The type and severity of the offense.
• How long ago the case occurred.
• Whether all terms of a sentence were completed.
• Whether restitution, fines, or court costs remain outstanding.
• Whether the individual has subsequent criminal cases.
• Whether a waiting period has expired.
• Whether the law provides automatic clearance or requires a petition.
• Whether the particular offense is statutorily excluded.

That means someone should never assume that they either do or do not qualify based solely on what happened to another person.

Eligibility must be determined under the law governing the particular record.

Clean Slate Laws Are Making Record Clearing Easier in Some States

Historically, even people legally entitled to record clearing often faced a complicated process involving petitions, court fees, hearings, attorneys, and extensive paperwork.

That is beginning to change.

The Clean Slate Initiative advocates for laws that automatically clear eligible records once statutory requirements have been satisfied rather than requiring every eligible person to navigate a petition process.

The organization defines qualifying Clean Slate policies as including automatic clearance upon eligibility, arrest records, misdemeanor records, and other specified categories.

Visit the Clean Slate Initiative

Automatic record clearing is especially important because a legal right that people cannot realistically access provides limited practical benefit.

Where Can Someone Find Out Whether Their Record Can Be Cleared?

A particularly useful national resource is the Clean Slate Clearinghouse, a project supported by the U.S. Department of Justice's Bureau of Justice Assistance and developed with the U.S. Department of Labor. It is hosted by the National Reentry Resource Center.

The Clearinghouse provides information about adult and juvenile record-clearance laws throughout the United States and its territories. It also provides tools for researching state laws and locating legal assistance.

Visit the Clean Slate Clearinghouse

Because the terminology and eligibility rules differ dramatically among states, these resources can be an excellent starting point.

People may also want to consult a criminal-defense or record-clearing attorney licensed in the state where the record originated. Legal-aid organizations and expungement clinics may provide free or reduced-cost assistance to qualifying individuals.

After an Expungement, Check Your Background Again

Getting an expungement order may not always be the last practical step.

Criminal-record information can be copied into databases before the original record is cleared. Although legitimate background-screening companies have obligations concerning accuracy and legally reportable information, outdated information can occasionally persist in third-party databases.

For that reason, someone who obtains an expungement may want to verify afterward that the record has actually been removed from the government repositories and other background-check sources affected by the order.

If obsolete or inaccurate information appears on an employment background report, the FCRA provides consumers with rights to dispute inaccurate or incomplete information.

Employers Benefit From Record Clearing Too

Record clearing is usually discussed as a benefit to the individual, but employers can benefit as well.

Employers want qualified, dependable employees.

When legally irrelevant or legally cleared criminal records are removed from the hiring equation, employers can concentrate on information that actually predicts whether the candidate can successfully perform the job.

Expungement also complements fair-chance hiring initiatives by addressing the issue at its source.

Rather than asking an employer to overlook a record, weigh mitigating circumstances, or determine how much significance to give an old case, record clearing can—in qualifying situations—legally remove or restrict the underlying record itself.

Some background screening companies have incorporated expungement assistance into their broader fair-chance initiatives, describing record clearing as a way of helping job seekers prevent eligible past records from remaining barriers to employment.

A Criminal Record Does Not Always Have to Be Permanent

A person who made a mistake years ago should not automatically assume that the record must follow them forever.

Likewise, someone whose charges were dismissed or who was found not guilty should not assume that the record disappeared when the case ended.

The law in many states provides ways for qualifying individuals to clear, expunge, seal, restrict, or otherwise limit access to certain criminal records.

That matters enormously when looking for employment.

Fair-chance laws, the FCRA, EEOC guidance, individualized assessments, ban-the-box requirements, and adverse-action protections all serve important purposes when employers encounter criminal history.

But for someone who is legally eligible to clear a record, an even better outcome may be preventing that record from becoming part of the ordinary employment background-check decision at all.

Expungement cannot rewrite history.

But when the law permits a person to clear an old record, it can help ensure that the person's future is not continually determined by it.

Record-Clearing Resources

• Clean Slate Clearinghouse — Information about record-clearance laws and legal resources across U.S. states and territories, hosted by the National Reentry Resource Center.
• Clean Slate Initiative — Information about state Clean Slate laws, automatic record clearing, and current reform efforts.
• Texas State Law Library: Expunctions & Nondisclosure Orders — Texas-specific information about expunctions and orders of nondisclosure.
• EEOC Enforcement Guidance on Arrest and Conviction Records — the factors employers weigh when considering criminal history.
• Prescott & Starr, Expungement of Criminal Convictions: An Empirical Study (Harvard Law Review) — the Michigan expungement study cited above.

Important Disclaimer

This article is provided for general educational purposes and is not legal advice. Expungement, expunction, sealing, nondisclosure, and record-clearance laws vary significantly by jurisdiction and can change. Eligibility and the legal effect of clearing a record depend on the facts of the case and applicable law. Individuals should consult a qualified attorney or appropriate legal-aid organization regarding their specific circumstances.