“Why does my criminal conviction continue to show up on criminal background checks?” This is a question I often receive from clients who have had their criminal records expunged only to find out that the prior conviction is still showing up on criminal background checks. While many lawyers will tell you that you can “wipe your slate clean” with a criminal expungement, this is not entirely true.

If you were convicted of a Class A, B, or C Felony or Level 1-5 Felony, you may petition to have your records expunged (depending upon the nature of the offense), however, your records will not disappear from public view. Indiana law says that your records will be marked “Expunged” to notify potential employers or licensing agencies that you have the rights available to you within Indiana Code 35-38-9-10. For example, it is unlawful for any person to refuse to employ or otherwise discriminate against anyone because of a conviction or arrest record that is sealed or expunged under Indiana Code 35-38-9.  Additionally, if your record is marked “Expunged” but still visible to the public, you still have your right to vote, hold public office, serve as a juror and be a proper person (subject to certain limitations) restored.

Level 6 Felonies, Class D Felonies and misdemeanor crimes that have been expunged are treated differently because under Indiana law, these offenses are shielded from public view. Indiana state law requires that when an expungement order has been signed, the Indiana Department of Corrections, the Indiana Bureau of Motor Vehicles and each law enforcement agency who kept a record of the conviction. Additionally, the Court will order the Indiana State Police Central Repository to expunge its records.

What you do not see in the expungement statutes is a requirement for private entities such as media outlets and private criminal background check providers to expunge their records. Thus, often times when an individual incurs the expense of hiring a lawyer to have his/her record expunged, the expungement may still show up when that individual applies for a job or runs their own background check through a private criminal background service provider.

While the Indiana expungement statutes do not require criminal background checks by private third-party companies to be expunged, Indiana law does impose a duty upon these companies to accurately maintain their records. A failure by the private third-party company to accurately maintain its records may give rise to an independent lawsuit by someone who is harmed by the company’s failure to do so.

If you have had your criminal record expunged and you are being denied jobs, applications, licenses, or permits you may have a private cause of action to recover damages. Consider contacting an attorney at the law firm of Cate, Terry & Gookins, LLC to discuss your options. We would be glad to help you.