Can Employers Ask About Expunged Records?

It’s a fact of life: Most of us need jobs. It’s what pays for your home and puts food on the table. But if you have a criminal record, it can be hard to find one. If you can’t find a job, you might turn to crime. It’s an endless cycle that Oklahoma has been fighting to stop. One of the most important ways to empower individuals to find employment is through expungement. This is a process that seals your criminal record from public view, including from potential employers.

Can Employers Ask About Expunged Records?

No. Oklahoma Statute Title 22, Section 19, states that employers cannot ask applicants about expunged or sealed records. Specifically:

• Employers can’t require you to disclose any information contained in sealed records, whether on a job application or during the interview process.
• You don’t need to answer any questions about sealed records, and you’re allowed to say that “no such action ever occurred.”
• Your application can’t be denied because you refuse to talk about sealed records.

This is one of the biggest benefits of expungement: If your record has been sealed, you’re legally allowed to deny the crime ever occurred. This doesn’t just apply to employers. You also don’t have to admit sealed past crimes to landlords and others in the private sector.

Can Employers See Expunged Records?

Employers not only can’t ask about expunged records – most of them also can’t see these records on a background check. Expunging criminal records removes them from the Oklahoma State Courts Network (OSCN), which is the database most background checks use. However, it doesn’t remove them from the National Crime Information Center (NCIC), which is run at the federal level.

On the rare occasion you’re fingerprinted for an employment background check, your expunged records may show up, as the prints will be run through the federal database. However, not many employers have this access. Fingerprints are usually only taken for federal employment and in certain industries, like those that work with children or the elderly. Most employers use private companies that run background checks using only your name.

What About Records That Aren’t Expunged?

We often get questions like “Can employers ask about expunged records?” from people who haven’t actually expunged their records yet. If this is you, it’s important to know that when they run a background check, employers can see a lot of different types of criminal records if they haven’t been expunged. You also can’t legally deny these things if they haven’t been expunged. This is particularly confusing if you received a deferred sentence, which people often believe is an expungement. However, it is not, and will still show up on background searches.

Arrests and Dismissed Charges

It’s not uncommon for someone to be arrested and never charged with a crime. For example, if there’s an argument or fight, the police may use arrests as a way to “defuse” the situation. There was even a famous case in 2017 in which a man shot three would-be burglars on his property, was arrested, but wasn’t charged, thanks to Oklahoma’s self-defense laws. Charges can also be dismissed at any time during the court process—especially if you have a good lawyer.

Even if you ultimately don’t have a day in court, your criminal record will still show that you were arrested or charged. The good news is that it’s usually easy to get arrests and dismissed charges expunged, and you only need to wait one year if your case was dismissed after a deferred sentence (probation). You may be immediately eligible to get the arrest expunged if your case was dismissed without a deferred sentence. More good news: Even if you have a felony charge that was dismissed, you can still get it expunged. This isn’t always the case for convictions.

Criminal Convictions

Most people know about this one: If you’ve been convicted of any crime, including pleading guilty, it will show up on your criminal record if it hasn’t been expunged. This includes suspended sentences, because they typically mean that you plead guilty, but the judge sentenced you to probation instead of jail.

Which criminal convictions can be expunged is one of the most common questions about expungement. Here’s the simple answer: You can never expunge violent felonies. Also, if you committed a sex crime that required you to register on the sex offender registry (typically felonies), you’re probably not eligible for expungement. Expungement only applies to your criminal record, so you also can’t expunge civil cases like evictions, bankruptcy, and small claims.

Protective Orders

Protective orders (POs), also called restraining orders, are issued by the courts to stop certain actions, like phone calls, or generally keep a person from approaching another person. They’re important to help protect victims of abuse, stalking, and harassment, but they’re not always used appropriately. You also don’t have to be convicted of a crime to have a PO filed against you—but it will still appear on your court records.

Having a PO on your record will almost certainly affect your ability to find employment, because it gives the impression that you’re violent or unpredictable. The expungement process for a PO can be complex, but it’s especially important that you complete it as soon as you can.

What to Do If an Employer Asks About Your Record

It’s unlikely that an employer is going to specifically ask if you have any expunged records, because it’s illegal to do so. If they do ask you to tell them about expunged or sealed records, you can politely refuse by saying something like, “I’d prefer to protect my privacy.” After all, that’s why you expunge records in the first place.

More commonly, employers will ask general questions like “Do you have any arrests or convictions in your past?” If your record has been expunged, you can say no. If it hasn’t, it’s best to be honest. Potential employers are able to conduct a simple, name-based background check and find those records anyway.

The Bottom Line

The simple answer to “Can employers ask about expunged records?” is no—it’s illegal in the state of Oklahoma. If your record has been expunged, you don’t have to fess up, even if they do ask you. That’s why it’s so important to expunge everything you can from your record, including arrests, charges that didn’t lead to conviction, and protective orders. We believe everyone deserves a fair chance at employment, and we’re here to help. Contact us today so you can stop worrying about your next job application.