Rob Artus

Over the last 25 years, I have often been approached by numerous individuals requesting a background check on themselves, that is, a “self-background” check. Those individuals have included lawyers being considered for jobs and committees, senior executives under consideration for board membership, regular folk in the process of a job application, and in one case, a public figure who was under consideration as a spokeswoman for a company.

In each case, they wanted to know what “was out there”, that is, what a typical background investigation might uncover. Years ago I might have conducted a full background check, but now I just cut to the chase. “Ok, what did you do, where, and when”, I more typically ask. The very nature of a person wanting a self-background suggests that they want to know if some event or public record will show up in a background investigation and, more importantly, should they disclose it in their application/vetting process. And it seems to always be an arrest.

If a criminal case is expunged, is the person obligated to disclose it? Absolutely not, in a pre-employment background environment. However the disclosure paperwork I have seen for many committees, boards, organizations and companies (in a non-employment environment) ask the more broad question, “have you ever been arrested”. Although of course not in compliance with the FCRA, which governs pre-employment background investigations, many organizations still ask the question. The issue is, what will be uncovered, and how should you answer?

Let’s look at how records are collected. In Connecticut, New York and Florida, for example, a criminal case is litigated and recorded at the court level and then if convicted, is reported as a conviction by the appropriate state agency in each state (in this example, the Connecticut State Police, the New York Unified Court System and the Florida Department of Law Enforcement). The courts also maintain a record of the case and its disposition. If a case is ultimately expunged, the court SHOULD delete the record and report it as “not a public record”. Similarly, the state agency SHOULD also remove the record from its databases.

However in the interim period, commercial databases troll the court websites and state agencies to gather case information on a daily basis and in many states, state agency information is also sold to the commercial databases. So, if a case is expunged or dismissed, the courts delete the records, the state agency delete the records, but the record still lingers in the national commercial databases. And is most often not removed. Similarly, there is often media coverage in police blotters and local newspapers which are also online and which also do not go away.

Similarly, many states do not report DUI’s as criminal records, rather, they can only be identified through research of Drivers’ History records. So while you may not have a reported criminal record for a DUI, or you fulfilled the obligation of the court through accelerated rehabilitation or similar, DMV still reports the conviction, the suspension and license reinstatement. They don’t care that the court record was removed, rather, DMV merely reports the facts, that is: suspension, reason, points, and license reinstatement. Those records are routinely removed from a driver’s history after a period of time (ten years in Connecticut).

In every case in which I have completed a self-background check, the subject is amazed that the record can still be found, as they were assured by lawyers or the court that the record would “go away”. On the contrary, I cease to be amazed how readily these records are located.

So what do you do, how do you answer? I am not an attorney and this should in no way be construed as legal advice, but I can tell you that the acknowledgment of a youthful indiscretion is far less significant in the vetting process than doubt of your current veracity. The searching entity may never find the information, depending on the quality of the firm they select to conduct the actual investigation, but there’s always the chance that it may be found.

To that end, in each case, I have shown the client how easily accessible the information is, and in each case have encouraged them to disclose the matter. Technology and databases are wonderful things, but they have very, very long memories. If still in doubt, give me a call and we’ll see what we can find.