Employer Background Searches – Role of the Courts in Expungements for Proceedings Disposed Under the ARD Program

A recent issue arose with a client who had a court ordered expungement of his marijuana possession charges in Central Pennsylvania. The ARD Court clearly ordered that all criminal justice agencies and the Administrative Office of Pennsylvania Courts were to expunge all references to the client’s drug charges which were processed through the ARD Program. The County court order was signed in March of 2012. As of June of 2012 the State Police Repository had still not acted upon the expungement. After contacting the State Police Repository, undersigned counsel was advised that there is a backlog of cases. But, in fact, they had received the notification from the court. Subsequently, undersigned counsel received a notification from the Pennsylvania State Police Repository in June of 2012 that the charges had been expunged.

In between the certification from the State Police and October of 2012, a private record search company did a background check at the request of a potential employer for the client in question. The background check still showed the original criminal charges that were supposedly expunged through the ARD Program. Undersigned counsel contacted the company based in Ohio to determine why the record was still showing as not expunged. The company spokesman indicated that their office was relying upon updates from the Administrative Office of Pennsylvania Courts. Undersigned counsel was aware that the AOPC had already previously deleted their records in accordance with the County court order and that those records were deleted before June of 2012.

This scenario represents a dangerous precedent wherein a privately based search company mining data and keeping old data in their own database could potentially cost a client a job or a professional license where the information has not been properly updated. This is also a good lesson for counsel in that counsel can no longer assume, just because the State Police has issued a certification of expungement, that some third party with its own database has properly updated their records.

The solution in this case was to forward the court order and the State Police Certification to the compliance division within the background checking company to ensure that they are now on notice to update their files in accordance with the court order.

Blog Written by David Hershey

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