Wednesday, May 11, 2016

Can a Potential Employer ask you to Disclose an old Criminal Case that was Expunged? ~ Chosen as "Best Answer" by Asker on AVVO ~ Call Michael A. Haber, Esq. @ 1-888-SHARK-8-1

Q:    I had an arrest expunged from my record in 2004. I was found not guilty by directed verdict. The arrest and all court records were expunged in 2004. All of the court documents were physically destroyed. I am applying for a position with a financial company and on the personal information section it asks if I have ever been the subject of a court proceeding. It states that I must disclose this even if the record has been expunged or sealed. I am a licensed attorney in Florida, and although I am not familiar with employment law, I do not believe this falls into one of the exceptions for disclosure under the Florida statutes. I do not wish to disclose this information as all of the records have been expunged. Can they legally tell me I have to disclose this information?

A:     Chosen as "Best Answer" by Asker on

Best Answer
chosen by asker
Answered Q: Can a company ask you to disclose a court proceeding that was expunged?

A: Absolutely

That does not mean that you have turn them over, but it also does not mean that there will be no consequence to you if you don't turn them over (the most likely consequence being you not getting hired).

The rules say: "The subject of a criminal history record sealed under this section or under other provisions of law, including former s.893.14, former s.901.33, and former s.943.058, may lawfully deny or fail to acknowledge the arrests covered by the sealed record, except when the subject of the record:
Is a candidate for employment with a criminal justice agency;

Is a defendant in a criminal prosecution;

Concurrently or subsequently petitions for relief under s.943.0585 or s.943.059;

Is a candidate for admission to The Florida Bar;

Is seeking to be employed or licensed by or to contract with the Department of Children and Family Services, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly;

Is seeking to be employed or licensed by the Department of Education, any district school board, any university laboratory school, any charter school, any private or parochial school, or any local governmental entity that licenses child care facilities; or

Is attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer and is the subject to a criminal history background check under state or federal law."

Still, and regardless, no one can tell you what a potential employer will or will not do, what they may or may not ask on an employment application and how they will treat your response (regardless of the legality of it - i.e. not withstanding that you may have been lawfully able to deny an expunged case which they found in a background). 

Florida is an "at will" employment state, meaning that, absent an employment contract, you can be hired or fired for any reason or for no reason, so long as it is not for an illegal reason (i.e. race, sex, etc). So, if they don;t like your application for any non-protected reason (and, to my knowledge, criminal history is not a protected reason) then you do not have to be hire. 

So,. disclose or not... the choice is yours... as will be the consequence.

I hope that I have been helpful in answering your question.
First, second and third: No attorney-client relationship exists by virtue of any Q&A with Michael A. Haber, Esq. on Avvo. Fourth: Anything that you post on Avvo (or on similar sites) or on any social media is by its nature public. It is essentially an admission / confession and can be introduced into evidence as a statement against your interest in a subsequent legal proceeding. Once posted you lose any reasonable expectation of privacy, so, as this is an open forum (with no privilege attached), please be extra careful when considering what to post online (forewarned is forearmed.)

At Michael A. Haber, P.A. the goals in representing folks are A) to be honest and realistic about litigation objectives; B) to be fair in regard to fees; C) to be consistently available and responsive to the client (in person, by phone call, text, email, Facebook. Twitter and otherwise); D) to keep the client informed; and E) to secure your positive feedback / client review at the conclusion of each case.

At Michael A. Haber, P.A. "Its all about reasonable doubt"!

Michael A. Haber, Esq. is prepared to speak with you about your case!

Cell: 305-798-2220; Office: 305-381-8686; Toll Free: 1-888-SHARK-8-1


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