Sometimes, legal terms seem to be unduly confusing and unclear.
When it comes to criminal records, there are two general parts— the arrest record and the disposition. The arrest record is a formal attestation that a person has been charged with a crime. The arrest record will usually specify the nature of the crime, a date, county and state of arrest, and other general information. It’s important to note that the word “arrest” is a word to describe any situation where a formal charge (regardless of its severity) is brought against an individual— not just those situations that involve handcuffing and booking.
The second part of a criminal record is the disposition. This part follows a trial or court review, stating either a charge’s current status or final outcome. There are a number of common dispositions including:
- Charges Dropped
- Diversion/Deferred Prosecution
- Suspended Sentence
A disposition confirms that due process has been followed and a case is being/has been handled in all fairness according to the law. You can find more information about criminal defendants’ rights here.
Confusion Surrounding Non-Conviction Dispositions
Would you be surprised to know that, in many states, employers can refuse employment to a candidate because of a dismissed record?
Arrest records accompanied by a dismissed disposition can still show up on a background check and be used to determine a candidate’s job worthiness (again, depending on the state).
Dismissed simply means that the case was closed with no finding of guilt. This does not mean the defendant was found to be innocent. Along with pending and deferred charges, dismissed records often fall into a sort of “gray area” for employers in certain states.
In order for a record to be permanently removed, it has to go through the expungement process.
What Is an Expunged Record?
Put simply, to expunge means to delete, entirely and permanently.
If a criminal record is expunged, it is not accessible to anyone, and therefore, will not show up on a background check.
Most of the time, records aren’t expunged automatically. They typically start out as dismissed records, then are sent to a judge for expungement approval after a formal request has been filed. Expungement eligibility is dependent on a number of factors, many of which vary from case to case*. Because of this, someone could have records eligible for expungement and not even be aware.
*Conviction records are not eligible for expungement.
Compliant Screening Providers Will Know the State Laws and Provide Reliable Data
As an employer, it is important to partner with a screening provider that knows what records can be reported and what records, if not removed, could lead to legal disputes.
For example, in California, it is unlawful for any records that did not result in a conviction to be reported. If an employer makes an adverse decision based on a dismissed record in California reported by a negligent screening provider, it could open the employer up to tremendous liability.
In summation, dismissed records are those where neither a finding of guilt nor innocence has been indicated. It does not mean the charge has altogether been forgotten about. In many instances, dismissed records can still have a negative impact, frustrating an individual’s efforts to obtain employment, getting accepted into a particular program, etc. Although the word may be slightly misleading, many states recognize dismissed records as legitimate, reportable criminal records.
Expunged records are those that have actually been deleted or stricken from the record, permanently. These records will never show up on a background check.
Regardless of the disposition, it is important that employers partner with compliant agencies to help them in the process. There are a number of laws and regulations surrounding dismissed and expunged records that need to be properly observed.
We hope you found this helpful. For more information on how to order a personal background check, visit us online.