What your employee background checks may not be telling you

By Kate Mesic

For most hiring managers, performing a criminal background check is part of the hiring process. We all want to make great staff decisions because the emotional and economic cost of a bad hire can be enormous. While performing a background check is very well accepted and prudent practice, it’s important to understand what the report may NOT be telling you. It is possible that there is more to a criminal history than the report leads you to believe.

Let me introduce you to a legal term called expungement or sealing. This is a court-ordered process in which the legal record of an arrest or an entry of a plea is erased in the eyes of the law.  This means it won’t show up on a background check. It is important to note that you can only have one expungement or sealing in a lifetime and not if you have a prior criminal conviction for any offense.

It is important to understand the difference between expungement and sealing.  Expungement is reserved for people who have never been convicted of any crime, and the case they are trying to expunge has been either dropped or dismissed.  A sealing, on the other hand, is applicable to a person who has never been convicted, but in the case that he is trying to seal, he has entered a plea, but a Judge has withheld adjudication.

Florida statute impose limitations sealing based on the type of crime. Serious felony crimes like murder, arson,  rape, sexual battery, aggregated assault, kidnapping, car jacking, child pornagraphy, home invasion robbery and acts of terrorism are never eligible for a sealing. However, they could be expunged, because remember, the case has to be dropped or dismissed to qualify for an expungement.

When a person is charged with an offense that cannot be sealed after entering a plea, such as domestic battery, there is a possibility that the person’s defense counsel can negotiate the case so that the person enters a plea to a simple battery. In that case, even after entering a plea, as long as adjudication was withheld, the case qualifies for a sealing. Similarly, if a DUI is reduced to a reckless driving, as long the accused does not have any prior convictions, and the Judge withholds adjudication, a sealing is possible.

Interesting to note, under Florida law, the applicant does not have to disclose a prior arrest or a criminal record if the records were expunged or sealed.  When asked the question Have you ever been arrested, they can check the “no.” Similarly with a sealing, the person can deny entering a plea or having adjudication withheld. Of course, there are exceptions, based on Florida Statutes 943.0585 and 943.059, such as if the person is applying for a job with a criminal justice agency; a person is a defendant in a criminal prosecution; a person is applying for admission to The Florida Bar;  the person is applying to work with disabled adults or children; the person wants to be a teacher and several others.

Can’t you ask applicants if they have ever had records expunged? The answer is no. After a record has been expunged, it legally no longer exists. The physical file literally is destroyed for good by the clerk’s office.

Overall, the practice of expunging and sealing records is for people who have never been convicted of a crime. It affords an opportunity for a second chance, and not letting a lapse in judgment ruin a person’s life.

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Disclaimer: information provided in this article does not constitute legal advice.

Kate Mesic headshot by Agnes Lopez(1)Kate L. Mesic is the President of Mesic Law, specializing in business law and criminal defense.

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