North Carolina Criminal Law Updates
(This post pertains only to expunctions of North Carolina charges in North Carolina courts)
In this day and age, most employers, colleges and universities and military branches routinely run a criminal record check on applicants. A person with a previous criminal charge on their record runs a much higher risk of rejection than someone with a clean record. Expunctions, otherwise known as expungements, are a way to eliminate some of those previous charges and related information, in certain, limited circumstances, from appearing on a public record. However, simply obtaining an expunction does not erase the fact that the previous charge, and the conduct which led to it, actually occurred. So what, exactly, does an expunction accomplish?
North Carolina Expunction Statute
Pursuant to N.C. General Statute 15A-153 the purpose of an expunction is to “clear the public record of any entry of any arrest, criminal charge, or criminal conviction that has been expunged so that (i) the person who is entitled to and obtains the expunction may omit reference to the charges or convictions to potential employers and others and (ii) a records check for prior arrests and convictions will not disclose the expunged entries.” Further, if a person has obtained an expunction, he/she cannot be found guilty of perjury or giving a false statement because of that person’s failure to recite or acknowledge any expunged arrest, apprehension, charge, indictment, information, trial, or conviction.
An employer or educational institution is not allowed to require an applicant for employment or admission to disclose information concerning any arrest, criminal charge, or criminal conviction of the applicant that has been expunged, and an applicant need not mention information concerning arrests, charges, or convictions that have been expunged.” In addition, “agencies, officials, and employees of the State and local governments who request disclosure of information concerning any arrest, criminal charge, or criminal conviction of the applicant shall first advise the applicant that State law allows the applicant to not refer to any arrest, charge, or conviction that has been expunged.”
However, it should be noted that the expunction laws do not apply to prohibit State or local law enforcement agencies authorized pursuant to G.S. 15A-151 from obtaining confidential information for employment purposes. In addition, with respect to certain non-violent felonies as described in N.C.G.s. 15A-145.4 and 15A-145.4, the expunction laws “do not apply to any applicant or licensee seeking or holding any certification issued by the North Carolina Criminal Justice Education and Training Standards Commission or the North Carolina Sheriffs Education and Training Standards Commission.
When a NC Employer Violates Expunction Laws in Criminal Record Checks
If any employer violates these expunction protections, it is subject to certain penalties, including a written warning for a first violation and a civil penalty of up to five hundred dollars ($500.00) for each additional violation occurring after receipt of the written warning, each to be assessed by the N.C. Department of Labor. However, the expunction statutes do not create a private cause of action (or grounds for a lawsuit) against any employer or its agents or employees, any educational institutions or their agents or employees, or any State or local government agencies, officials, or employees for violating the expunction statute.
Steps to Take in Addition to Obtaining an Expungement in NC
It should be noted, however, that simply obtaining an expunction does not mean that a potential employer or educational institution will not find out about the previous charges, or the conduct that led to them, via social media sites, newspapers, or otherwise. However, obtaining an expunction will help to clear your public record and eliminate the need for you to disclose previous indiscretions during application processes.