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Criminal Background Checks in the Era of Big Data

While expungement petitions have steadily risen nationwide over the past several years, gone are the days when an expungement order wiped away all remnants of a person’s criminal record. Employers have a wealth of resources at their fingertips to learn of job applicants’ prior criminal indiscretions.

The rise of data brokers, who make it their business to collect and hold public information, makes the expungement process far less valuable to job seekers. One of the nation’s largest data brokers, Experian Public Records, boasts of its repository of “over 600 million unique criminal records” compiled directly from “more than 1,200 different government municipalities at the county, state and federal levels across the United States[.]”

Individuals need to understand the limits of an expungement in order to anticipate what information remains available to the public even after a successful petition to “wipe the slate clean.”

Expungement is the process by which the legal record of a criminal offense is removed from court and law enforcement records. In Maryland, after a formal expungement request is made to the court, a judge then determines whether the petition can be granted. Successful petitions result in a court order instructing various entities, such as the arresting agency, parole and probation, the Criminal Justice Information Services (CJIS), and even the court system itself, to permanently destroy records generated from an arrest event. Each entity, having its own stand-alone database, then purges their respective records in a process that varies from one entity to another. Data brokers are constantly collecting and holding this information before it disappears.

Data brokers are not affected by an expungement order. Information generated following an arrest event that has been collected by a data broker and offered to customers is not the legal record of an arrest event. Data brokers are, therefore, not obligated to destroy this information following a successful petition for expungement.

Employers and job applicants alike should understand what information is available concerning criminal records as well as their respective rights.

While Baltimore City, Montgomery County, and Prince Georges County have promulgated “ban the box” legislation, making it illegal for private employers to make criminal background inquiries prior to a conditional offer of employment, the trend has not been universally accepted. For more information, see Maryland “Ban the Box” Laws. The majority of employers in Maryland are still permitted to ask about a job applicant’s criminal record early in the application process. Job seekers, whether or not they have expunged a prior criminal record, should be wary.

While a Maryland employer or educational institution may not require, as a condition of employment or admission, that a person disclose expunged information, see Md. Code Ann., Criminal Procedure § 10-109, job seekers should understand that a potential employer may lawfully become aware of an old criminal charge during or even after the application process and be prepared to address it appropriately.

© Andrew K. O’Connell
Thomas & Libowitz, P.A.

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