If someone applies for a job and the application asks whether they've ever been arrested, can they legally say on the application that they have not been arrested before?
Note: Case was dismissed with no finding of fact.
Law Stack Exchange is a question and answer site for legal professionals, students, and others with experience or interest in law. It only takes a minute to sign up.Sign up to join this community
Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision two of section 160.5 of this chapter, the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution. The arrest or prosecution shall not operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession, or calling. Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest or prosecution.
From this short article you will note:
This is why the employment guide posted in @jqning's answer states:
Remember from this previous answer, open arrests are on the record. The New York statute linked in that article explains the process and timing for sealing an arrest record after a criminal proceeding goes in favor of the arrested person.
First, be sure you are talking about actual expungement and not just having your record sealed. The terms “expungement” and “sealing” are often used interchangeably, but they are not the same and there are some very important differences.
“Sealing” is when the general public no longer possesses the right to search for your criminal records in a background check or even under FOIA. If you have had your record "expunged", under the law it is as if it never happened and the record is destroyed. It carries more force and applies to more situations. It is also irreversible.
When your record is sealed, it means the conviction cannot be accessed by normal background checks; but the arrest will remain on your record. Those considering you for employment or who you are petitioning for a loan cannot look into these records during a background check. Furthermore, you can generally legally deny that the events on your record ever happened (there are a variety of exceptions). The record itself, however, does still exist and it is possible for certain entities to discover both the arrest and sealed conviction, and under some circumstances it can be unsealed. That said, only a court order to unseal the records can make the records accessible via a standard background check. However,even the expungement has practical limits. So, while you can answer "no" if asked if you've ever been convicted of a felony, there are certain agencies and employers are allowed to seek and use information on an applicant’s expunged convictions. Even if you have either of these done, police officers will still be able to see you've been arrested.
When your record is expunged, it is as if the offense never happened at all. Your record is removed or destroyed (legally if not literally), and it is not available for anyone to access, even by court order. As with a sealed record, you can legally deny the existence of the events that occurred. For example, if you have a job application that asks if you were ever convicted of a criminal offense, you can legally answer "no."
An expungement is a more permanent and reliable form of clearing your record. An expungement literally clears the record of any mention of your name as it pertains to a criminal court case, as well as all evidence that you were ever convicted. A sealed record serves much the same purpose, but the record still exists; it's just that almost no one can access it through conventional means unless it's unsealed.
Keep in mind, if you get an expungement, you should seek an order from the court having the record of arrest sealed as well, or you should go to the arresting police department and give them a copy of the order and ask they remove any notation of arrest from their databases (some will do this without a separate court order, some will not). A different administrative body deals with this so it is not automatic in many jurisdictions. If your arrest record is sealed, and your record is expunged, it is very unlikely anyone will ever know (aside from those entities that can know no matter what).
There are also situations when you still are supposed to answer yes to a question of whether you've been arrested (even w/out a conviction!) or convicted. For example, a law school application will often ask if you've ever been arrested or convicted, and they want a full explanation of the event. Even if you've not been convicted and even if sealed or expunged. Along with all circumstances surrounding it, they will want the order of expungement. While you can legally answer "no" and they may never find out, you should answer "yes" in that limited situation (although it is up to you) because as an institution you are agreeing to be honest on the application and if they find out you've lied, they can retract an otherwise legitimately earned degree. The same is true with the board of bar overseers. They will ask, and it is best to answer yes. It is not a bar to being admitted or licensed to practice law, but if you lie and they find out, it is reason to take action against you, because it shows moral turpitude. This is one example but there are others.
Yes, you can legally say you were not arrested. The exception is law enforcement and maybe some federal jobs that I do not know about.
Employers are not allowed to ask about arrests. The exception is that they can ask about open arrests - arrests that have not resulted in a disposition.
Employers can ask if you have been convicted of a crime.
You are only required to answer questions about arrests that led to convictions. If you have no open arrests and have no convictions, you can answer no to the question if you have ever been arrested.