Criminal background checks for employment raise several legal issues. For people filling out job applications, the only issue that matters is whether they will get the job. Employers are increasing reliance on criminal background checks and other background checks, such as education verification and credit reports. Criminal background checks, when you have a criminal history, can make a tremendous difference in determining whether you get a job. Today’s post, however, is not about the people who have a record with criminal activity clearly listed. Instead, this post is about people who no longer have a criminal record or almost had a criminal record. Specifically, those who have expunged criminal records and those who took deferred adjudication. If you believe a criminal background issue is making your job search difficult, then you should talk to a Texas expunction lawyer right away.
Expunged records, non-disclosure and employment criminal background checks in Texas
Expunged criminal records are those records that once contained an arrest but meet the requirements to properly expunge from the person’s criminal record. When a criminal record is expunged, all public records of the arrest disappear from the courthouse and other public agencies. If convicted of a crime or accepted a probationary alternative to prosecution then you may obtain an order of non-disclosure.
Here’s why the removal of the record from the courthouse is important: under federal and state law, employers or companies that perform background checks for employers can only use verifiable information in a background check to make employment decisions. Employers cannot verify convictions or arrests if the records do not exist in public records so an expunged or non-disclosed record cannot be verified. Either an expunction or order of non-disclosure will permit you to deny the existence of an arrest or conviction (for whatever has been expunged or ordered non-disclosed) in most cases. Certain entities can obtain information ordered not disclosed. So you need to know when you can deny a conviction or arrest. Expunged arrests may always be denied.
You may choose to roll the dice and state you have not been convicted of a crime or arrested on allegations of an offense and hope the potential employer does not perform a background check. However, if the employer finds out you lied that in itself will be a sufficient reason to terminate you. (Even if the employer would have otherwise overlooked the arrest or conviction.)
Deferred adjudication and employment criminal background checks in Texas
Unless you obtain an order of non-disclosure on a deferred adjudication, your employer can find it in a background check. Deferred adjudication probation and probation appear in public records. Both require you to enter a guilty plea or no contest plea. You can have deferred adjudication of a class C misdemeanor expunged; but most other deferred adjudication seals by an order of non-disclosure. These steps will limit the accessibility of deferred adjudication information to a potential employer.
Some cities and counties offer pre-trial diversion programs similar to deferred adjudication that result in a dismissal upon completion. These pre-trial diversion programs do not appear as deferred adjudication and do not require a guilty plea. However, the arrest or citation will still exist in public records until you have the arrest or citation expunged.