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Should I have a dismissed charge expunged?

smiling guyWhen an employer is seriously considering you for a position, they will likely gather information about you through a background check before they decide whether to hire you. Employers could do their own research about you on the internet, but they probably also request information from consumer reporting agencies (CRAs) or the government.

We previously posted about the Fair Credit Reporting Act (FCRA) and what requirements it places on employers that request background checks from CRAs and the CRAs that conduct the background checks. Most importantly, CRAs must not provide any criminal record history information other than charges for which you have entered a guilty plea in Kentucky. CRAs are also prohibited from reporting any arrests that are over seven years old, but convictions, regardless of age, will always be reported.

But neither federal law nor Kentucky law place the same requirements on government agencies that provide background checks. This means government background checks can provide information from your criminal record that includes dismissed or diverted charges. If employers see that you have anything on your record, they may assume that you were convicted even if you were not and decide not to hire you as a result.

Generally, government background checks for Kentucky employment, volunteer positions, and license applications come from the FBI’s National Crime Information Center, Kentucky State Police, and/or Kentucky’s Administrative Office of the Courts. You may be wondering how background checks from government organizations differ from CRAs. It comes down to interpretation. The FCRA defines a consumer reporting agency as

any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.

15 U.S.C. §1681a(f). Kentucky has adopted the FCRA’s definition of consumer reporting agencies. KRS 367.363(3).

This definition makes it sound like government agencies could be considered a CRAs, but they are not.  The Federal Trade Commission (FTC) “has never enforced the FCRA against any . . . government agency supplying public records.” This means employment background checks administered by Kentucky’s Administrative Office of the Courts (AOC), Kentucky State Police, FBI, etc. do not have to follow the FCRA guidelines.

You may be wondering; what types of jobs get background checks from these government agencies? Below are lists of jobs, volunteer positions, and licenses that permit or require government background checks under Kentucky Law:

The following are jobs, volunteer positions, or licenses that require government background checks under federal law:

These lists are not exhaustive. If you are applying for a position or a license not mentioned here, but are concerned that you may be subject to a government background check visit us at Unconvicted or call (888)-400-5730 . We know getting a job, a volunteer position, or a license is important to you, so do not hesitate to reach out to us.

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