Many of my Record Clearing clients have called me months and even years after expungement[1] with the same question: what’s the right answer to a criminal record question on a job application? The question may be phrased in many different ways, but it often asks about arrests as well as convictions.
In Illinois, it is unlawful for employers to ask you about your expunged record. In my opinion, that makes the question, “have you ever been arrested” illegal, because it demands a response from all applicants to disclose arrest information, even those who have received expungements. Questions about convictions, however, may be legal, because expunged records can technically only contain non-convictions.
Most employment applications don’t ask about arrests. If yours does, you DO NOT, I repeat DO NOT have to disclose ANY information about your expunged record. You petitioned for an expungement and your petition was reviewed and granted by a judge. As such, the law protects you from these questions.
So, what’s the right answer? My best advice is, if your record has been expunged, to answer any and all questions with the following phrase. “No arrest record.”
I’ve spoken to other attorneys who have advised clients that, if the application asks for information about arrests, the expungement recipient may write “N/A” in the answer field. This is better, they say, because “No arrest record” sounds purposely evasive while “N/A” does not.
I prefer the answer “No arrest record” to “N/A,” only because “N/A” is arguably a lie. The question asks (albeit possibly illegally) about an arrest, and you have been arrested. The answer “No arrest record,” however, is a truthful and accurate response that reveals no protected information.
IMPORTANT: Please see my recent article entitled WHY LAWYERS DON’T TALK ABOUT EXPUNGEMENT. In order for this protection to apply to you, it’s imperative that you truly do have an expungement, meaning that you or your lawyer completed a Petition for Expungement, filed it with the court, and the Petition was granted. Dismissals and supervision pleas DO NOT automatically result in expungements. If your Expungement petition is still in process and has not been granted by the court, the law may not protect your right to conceal arrest information.
[1] This article addresses this question with respect to expungements only. With sealed felony convictions, it’s a bit more complicated. That’s because there’s a long list of types of employers who are allowed to see sealed records.