Across the United States, states have passed a wave of clean slate laws designed to automatically clear eligible criminal records — giving millions of Americans a genuine second chance at employment and housing. But a stubborn problem has persisted: many employers still ask about criminal history on job applications, and in some cases, records that have been legally sealed or expunged can still surface in background checks conducted by commercial screening companies.
The Gap Between Record-Clearing Laws and Employer Practices
When a court seals or expunges a criminal record, the legal effect is meant to be comprehensive: the record is removed from public access, and the person whose record was cleared can honestly say they have no criminal history. But employment background checks do not always work that way. Many commercial screening companies compile their own databases by aggregating court records, arrest logs, and booking data from multiple sources — and these aggregated databases are not always updated immediately when a court enters a sealing order.
The result is a practical gap: a record that has been legally sealed may still appear in a commercial background check for weeks or months. During that window, an employer who runs a background check may see a record that no longer legally exists — and make a hiring decision based on outdated information. Researchers and advocates who track employment discrimination have documented cases in which job seekers with properly sealed records were denied employment without ever being told why or given the chance to respond.
What the Law Does — and Does Not — Require
The framework of laws governing employer background checks is a patchwork that varies by state. At the federal level, the EEOC has issued guidance saying employers should not automatically disqualify people with criminal records, because such exclusions can disproportionately affect Black and Hispanic workers. But this guidance does not specifically address sealed or expunged records.
The most protective state laws — in California, New York, Illinois, and others — prohibit employers from asking about sealed or expunged records on job applications and give job seekers legal recourse if an employer improperly considers a cleared record. But in many states, no such protection exists. An employer who sees a sealed record on a background check may not even know the record was cleared, and the job seeker has no clear legal remedy.
Federal agencies and positions requiring security clearances operate under their own rules, which generally allow consideration of records that have been expunged in state court.
Why Ban the Box Is Not Enough
The ban the box movement — which calls on employers to remove criminal history questions from initial job applications — has been adopted in dozens of states and hundreds of cities. Research has generally found that these laws increase employment rates for people with records.
But ban the box does not eliminate the background check. It only delays it until after a conditional offer of employment. In practice, a job seeker with a sealed record may make it through the interview process, receive a conditional offer, and then have that offer rescinded after the background check surfaces a record that was legally cleared. Without knowing their rights and having documentation, challenging that decision is difficult.
What Job Seekers Can Do
Anyone with a sealed or expunged record should obtain a copy of their own background check — from the major consumer reporting agencies — before applying for jobs. If a sealed record is still showing up in commercial databases, it can be disputed and removed. Job seekers should also learn the law in their state: California, New York, and Illinois give people the right to sue employers who improperly consider sealed records, while other states offer little recourse.
Many employers — particularly large corporations — have adopted fair chance hiring policies that go beyond what the law requires. These employers consider candidates with records on a case-by-case basis. Job seekers who proactively explain their record-clearing status and what they have done since often find more success than those who leave it unaddressed.
A System Catching Up
The gap between record-clearing law and employer practices reflects a broader challenge: legal reforms pass, but the infrastructure implementing them — commercial databases, court notification systems, and employer hiring practices — does not always keep pace. Some states are beginning to address this through automated systems that alert background screening companies when a record has been sealed. These notifications require databases to be updated within a set timeframe — a technical fix that is gaining adoption.
Until those systems are widespread, job seekers with sealed records should not assume that the law alone will protect them. Knowing what is on your record and being prepared to assert your rights can make the difference between a second chance and another closed door.