With background checks becoming ever more common and intrusive in the job market today, many people are discovering that a “mistake” from his or her past can jeopardize a potential job. One way to “erase” the mistake is through expunction or nondisclosure.
Expunction erases the record of arrest or the court case of one’s charges so that the record is not viewable by the public, and a person can truthfully say that they’ve not been arrested or charged with a crime
An order of nondisclosure, on the other hand, allows the record for an arrest to be hidden from the public, but the record of the arrest is still available to law enforcement agencies.
Despite the “fresh start” that is supposed to be granted by expunction and nondisclosure, our office has learned that some employers are asking questions like these preceding with, “regardless of subsequent court dismissal, sealing (nondisclosure) or expungement”:
- Have you ever been convicted of a felony?
- Have you ever been arrested for a felony?
- Have you ever been convicted of any offense involving moral turpitude?
- Have you ever received probation for any felony offense?
- Has any court ever received a plea of guilty or nolo contendere or no contest from you for any felony or any offense involving moral turpitude or deferred further proceedings without entering a finding of guilty, and placed you on probation?
- Note: in this example, moral turpitude includes but is not limited to: 1. Dishonesty; fraud; deceit; theft; misrepresentation; 2. Deliberate violence; 3. Base, vile, or depraved acts that are intended to arouse or gratify the sexual desire of the actor; 4. Felony possession, transfer, sale, distribution, or conspiracy to possess, transfer, sell, or distribute any controlled substance defined in Chapter 481 of the Health and Safety Code; 5. Acts constituting public intoxication, operating a motor vehicle while under the influence of alcohol, or disorderly conduct, if any two or more acts are committed within any 12-month period; or Acts constituting abuse under the Texas Family Code
With employers becoming increasingly sophisticated and asking these types of questions—that expunction and nondisclosure laws are designed to protect—Bearkats need to think before they act. The simple solution is to not put yourself in a situation where you need the remedy of expunction or nondisclosure. But, if you do need these remedies, be aware that employers are developing questions to learn about your past.
Remember, if you have questions about expungemnets, nondisclosures, or employment law, please schedule a confidential meeting with our attorney at 936.294.1717 or at shsu.edu/legalservice.
SLMS points Bearkats in the right direction.