Why Does An Expunged Record Keep Showing Up? And What Can Be Done When Reckless Background Check Companies Keep Reporting It?March 19, 2016 | Category: Articles
Louisiana news stations have recently turned public attention to the difficulties that some local residents have had keeping jobs after their employer-mandated background checks reveal minor offenses that had been legally expunged—information that, by court order, has been made confidential.
In 2014, the Louisiana Legislature, recognizing the hurdle that long-past convictions can place on its citizens’ employment prospects, enacted a comprehensive expungement package that allows reformed offenders who have no new convictions or pending felony charges, to expunge their records of an old conviction. And the response has been highly favorable. In the 18 months since the law became effective, hundreds of Louisianans have successfully cleaned up their records and obtained better employment.
The new Louisiana Expungement Law requires that an expunged conviction becomes a confidential record that private background-check companies cannot see. Unfortunately, while employment in Louisiana has stagnated, the background-check industry has not. And some of the thousands of companies in this highly-competitive sector are willing to cut corners to save a few dollars—at the expense of law-abiding citizens.
The people featured in NBC-affilliate KPLC’s spotlight are victims of this sort of behavior. While courts and police agencies quickly adhere to the law when instructed to expunge a record in their possession, some recalcitrant private background check companies hesitate to incur the nominal costs of verifying their records before they report on someone’s background, and that means that they may be reporting outdated, inaccurate information. In the normal course of business, many background check companies receive large segments of conviction data and then rely on it indefinitely, without verifying its accuracy when a request for a background check comes in later for a specific person. For some people—those whose convictions were reported but later expunged—that can result in the expunged conviction being unethically disclosed.
The Louisiana Expungement Law prohibits any private background-check company from reporting the existence of an expunged conviction, if the company has been notified of the expungement, but with literally hundreds of large companies and thousands of smaller ones providing background services, getting the word out to all of them that a record has been expunged can be a formidable undertaking. The law allows civil damages to be assessed against any company that knowingly makes the unauthorized disclosure, but only if the person whose record has been expunged notifies the background-check company by certified mail with a copy of the expungement order. How any person is supposed to know which companies have an inaccurate record or which companies a prospective employer may use to conduct a background-check is not addressed by the law.
Alternatively, there are some data-management firms that, for a fee—often hundreds of dollars—mass-notify the larger background-check companies of an expungement, though the manner in which they give notice is insufficient to satisfy the legal requirement to assess damages against the companies if they continue to report the inaccurate information.
Additionally, federal law (the Fair Credit Reporting Act) can penalize certain reporting companies for lack of procedures or technical issues that result in an incorrect record's being reported to an employer. There is often a robust debate, though, about whether any particular background-check company actually qualifies as a credit reporting service and, hence, is subject to the restrictions of the Act. Further, because the Louisiana Expungement Law explicitly exempts any agency subject to the FCRA from punishment under the Louisiana law, detering this sort of behavior is more difficult, if a background-check company does not believe it falls into the category of a credit reporting service.
In fairness, it should be noted that most reputable background-check companies do conduct individualized checks when a request comes in for a specific job applicant, so the data they provide is fresh, and expunged records are not improperly reported, but there are, of course, exceptions, as the attached news article explores.
The best way to address this problem is the simple route that many other states have taken—and Louisiana has yet to adopt—a law requiring background-check companies to verify the current status of each applicant’s official criminal record before reporting it to an employer. Hopefully, the legislature, furthering its desire to help Louisianans to find employment, will take this simple step in the near future.
KPLC’s special feature on this problem is embedded below. The Louisiana Expungement Assistance & Advocacy Center is a comprehensive resource on expungement-related questions and is available to help those who need to clean their criminal histories for employment prospects or to enforce an order to expunge their records have been expunged.