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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.

  • In the real world that would be a lie. He was still arrested, but it is no longer on his record. – Terry Sep 11 '15 at 14:03
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    Im not inquiring about whether someone can lie!! Im inquiring about whether its LEGAL to say you havent been arrested, if the case was dismissed!! @Nate Eldredge – LOSTinNEWYORK Sep 11 '15 at 15:03
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    What I'm saying is this: saying you haven't been arrested is either true or false. If it's true, no problem. And even if it was false, I don't know of any law that makes it illegal to make false statements on a job application. So either way it would be legal. – Nate Eldredge Sep 11 '15 at 15:30
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    In Germany, for example, it is perfectly legal and it cannot be held against you in any way, if you lie in a job application to a question that the interviewer wasn't allowed to ask. For example if they ask a woman whether she is pregnant (which is illegal to ask), and she is pregnant, she can answer "YES" (no job), "it is illegal to ask" (no job), or "NO" (gets the job, gets all the benefits she is legally entitled to when she has the baby). – gnasher729 Sep 12 '15 at 11:58
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    @NateEldredge: if you actually get the job then I suppose lies told during the application and interview process might amount to criminal fraud when you're paid. – Steve Jessop Sep 12 '15 at 17:56
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New York Criminal Procedure - Article 160.6 states,

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:

  • As far as the law is concerned, the arrest never happened
  • Except for specific occupations listed in statute (such as law enforcement) the arrest record can not be considered
  • The person arrested can not be required to divulge information pertaining to the arrest

This is why the employment guide posted in @jqning's answer states:

  • Generally, an employer cannot ask about arrests during a job interview or on a job application
  • If none of your arrests are open or led to any convictions, you are legally permitted to answer "no" to these questions. If a job application asks you to list any "crimes", "convictions of crimes," or "criminal offenses," you should list only misdemeanor and felony convictions - not arrests.

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.

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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.

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    Don't law students and practitioners take any umbrage at the fact that schools and bars demand expunged information, given that the very institution they support has declared the information non-existent? Why do they tolerate such requests? – feetwet Sep 11 '15 at 16:59
  • I know! I thought the same things when I first saw those questions on the applications. And when I got to law school (granted that was a while ago), but I still remember asking that very question! However, if the conviction is such that it would prevent you from getting a license or would negatively impact the reputation of the school because the crime implied moral turpitude, then it sort of makes sense on the other hand. – gracey209 Sep 11 '15 at 17:29
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    I suppose that special case shows the logical impossibility of certain things the law might like to do. It it were really the case that "under the law it is as if it never happened", then "under the law" you're telling the truth by answering "no" to the question, and so "under the law" there's no moral turpitude. Meanwhile, back in the reality inhabited by the law school and the bar, you actually were arrested and prosecuted and actually didn't tell the truth about it, and the situation "under the law" (in court) is irrelevant. – Steve Jessop Sep 12 '15 at 18:05
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    Yes, right. And under the law, in that case only means that you can answer "lawfully" that it didn't happen-but institutions and professional associations can also require an answer because that is a contractual relationship. – gracey209 Sep 12 '15 at 19:16
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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.

Info is from Do You Have A Criminal Conviction History? A Guide To Your Employment Rights In New York

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    U.S. Federal employment requiring a security clearance can ask about arrests, including those that were expunged. While official policy on such proceedings is shrouded in secrecy, such arrests are unlikely to result in denial of a clearance on their own. It appears that the goals are 1. look for dishonesty (you didn't claim this but we know about it) and 2. suspected links to drugs and terrorism (even if expunged, someone had enough evidence to get a warrant to begin with). – user385 Sep 11 '15 at 17:15
  • @Snowman are people clearly informed of this and of the difference to a normal interview where it is acceptable and not dishonest to decline to mention one's expunged record? – Random832 Sep 11 '15 at 19:30
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    @Random832 The forms (SF86 et al) specifically mention these things and that gaining access to classified or other data involving national security is different from other background checks and employment paperwork. They can play by different rules because they are checking for a clearance, not a job: the fact that the job may require a clearance is an inconsequential detail. – user385 Sep 11 '15 at 19:53

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