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I was arrested, but not convicted. I got my arrest expunged about a year ago.

Will it still show up in a background check? Is there any way to fix it if it does?

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See the answer to this question. It is remotely possible that it will show up, but the new S.C. law also says that an employer cannot use that information. On the other hand, that law is not yet effective (it becomes effective Dec. 27 2018), so for the rest of the year, the information could be used, if an employer obtains is. There is a law-enforcement exception that arrests can always be used against you if you apply for a law-enforcement related job.

Under the current law (has been in effect for a while), the record is "under seal", so revealing the record in the course of a background check would be a violation of the relevant court order. The law specifies a punishment for illegal disclosure:

A person who intentionally violates this subsection is guilty of a misdemeanor, and, upon conviction, must be fined not more than one hundred dollars or imprisoned not more than thirty days, or both.

however, accidental disclosure is not a crime. You might think that you could at least sue them for accidental disclosure, but the law also says

Unless there is an act of gross negligence or intentional misconduct, nothing in this section gives rise to a claim for damages against the State, a state employee, a political subdivision of the State, an employee of a political subdivision of the State, a public officer, or other persons.

If the government person who releases the information intentionally does so, you can sue. Perhaps an accidental release could be found to be grossly negligent: that would depend on the circumstances.

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  • So if I was to apply to a job other than government or law enforcement they can't use my arrest in the hiring process? Is that what you're saying? Jul 17 '18 at 17:34
  • I put in the effective date of the new law, 5 months in the future.
    – user6726
    Jul 17 '18 at 17:54
  • I looked more into it, but from what it sounds like you already have to be an employee. I'm talking about if I was to apply for a job will it still be used a against me or not during the hiring process. I would add I'm not trying or have intentions working for the government or law enforcement. With that being said will a expunged record still be used against me during hiring. Jul 17 '18 at 19:06
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When someone obtains such an order sealing a record - an expectation of privacy is created. Specifically, when a record is sealed a right to privacy attaches. See, Gonzalez v. Spencer, 336 F.3d 832 (9th Cir.), cert. denied 157 L.Ed.2d 253, 124 S.Ct. 334 (2003) (attorney and law firm liable for accessing sealed case file without court authorization) See also, Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 657 (C.D. Cal. 2005). (federal courts generally recognize that individuals - both parties and third parties - have a right of privacy, which protects against unwarranted disclosure of confidential and personal information.)

Many attorneys offer services to send out letters attaching the court order to data brokers. Most states offer some form of expungement and/or record sealing.

Keep in mind to expunge a record does not mean to seal a record in all states. For example in California Penal Code Section 1203.4 will discard a conviction for a not-guilty plea and dismiss the case, but not seal the file. The conviction must be disclosed on applications for state or government employment. However, California Penal Code Section 851.8 does allow for record sealing and destruction of records along with the right to deny the arrest ever took place.

Once an order sealing a file, conviction, etc. is issued, the next step is sending certified letters to data brokers who feed the hundreds of smaller databases. The theme of the letter is that you have a right, in most cases, to deny the existence of a case and it is trampling on that right, thus must seal the record. I have yet to see a data broker not seal its record. Class action lawsuits such as Giddiens vs. LexisNexis, Henderson v. HireRight Solutions Inc.; Roe v. Intellicorp Records Inc.; and Robinson v. General Information Services Inc., have pushed background checking organizations into cooperating with a free service through the Foundation for Continuing Justice. However, not every company is on board and it’s possible for a person’s expungement to slip through the cracks.

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