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Strike That: Dealing with expunged or non-adjudicated criminal records in employment investigations

Criminal background checks, long a means of screening potential employees for patterns of illegal behavior, are increasingly coming under restriction by governing bodies. This particularly applies to crimes that do not constitute moral turpitude. This is especially true when a criminal complaint does not result in an adjudication of guilt. Improperly firing or refusing to hire based on a nonviolent criminal offense can subject a company to litigation, fines, or both.

To decrease jail populations, courts are more disposed to allow first-time offenders to enter into a plea bargain whereby probation is ruled, and the adjudication of guilt is deferred. In such instances, if the accused successfully completes the terms of probation, the matter is disposed and usually is subject to an order of nondisclosure, or an expungement. An order of nondisclosure shields the case from release to the general public, but still enables law enforcement and prosecutorial agencies to access the restricted record. An expungement is intended to remove the record altogether.

Many defendants do not comprehend, however, that a plea agreement stipulating no adjudication of guilt requires that they petition the court to order nondisclosure or expunge the record following their discharge from probation. As a result, countless records remain visible to the public through inspection of the criminal indexes and files maintained by the various court clerks, even though there was ultimately no judgment of guilt.

When contemplating the relevance of information discovered in the course of a criminal background check, it is crucial to determine whether or not there has been an adjudication of guilt. Often this is not possible through online records. If a serious criminal offense is being considered as the basis to disqualify an applicant, it is essential to adequately establish that there was a conviction. This typically requires a review of the case file and certified copies of the pertinent pleadings. Finally, consult with your HR professional and/or an employment attorney, of course, before making a decision.

Relying on a cheap online criminal check, rather than the skill of an experienced background analyst, can put you in legal jeopardy. When your pre-employment investigation requires professional diligence and discernment, you need the specialists of ResultQuest. Call us at 713/781-9040.