After a Court Order to Expunge or Seal Part 2

Congratulations! The judge has signed your court order to seal or expunge your record, but what does that really mean for you? 

This post reviews what having a record sealed or expunged really means, as well as some of your legal rights following sealing and expungement. For additional information about the process after an order to seal or expunge is signed, see our previous post: After a Court Order to Expunge or Seal Part 1, which walks through what happens with the court and law enforcement records after an order is signed.  

Before we discuss two laws that protect people following sealing or expungement, it’s important to remember that these are two similar, but different forms of legal relief that limit access to criminal history records in Illinois. Not every state has both sealing and expungement, and sometimes people incorrectly use the terms interchangeably. The key difference is who can see a record following expungement or sealing. 

Expungement: With limited exceptions, law enforcement cannot access expunged records. No other entities can access expunged records. 

Sealing: Sealed records are fully accessible to law enforcement. However, private and public entities cannot access sealed non-conviction records. With limited exceptions (such as DCFS), sealed misdemeanor convictions cannot be accessed by non-law enforcement entities.  There are however state and federal rules that allow other non-law enforcement entities to access sealed felony convictions through fingerprint-based background checks through the Illinois State Police. 

The following two laws are important, because they are where rights come from. You can’t enforce your rights if you don’t know them! 

Fair Credit Reporting Act 

The Fair Credit Reporting Act (abbreviated “FCRA”) is a federal law that promotes accuracy, fairness, and privacy of information in the files of consumer reporting agencies. Under FCRA there are rules that companies must follow when running background checks even if you haven’t had cases sealed or expunged. 

After a case is sealed or expunged, FCRA protects you by requiring that private background check companies use updated information and not disclose a case that was ordered sealed or expunged. Sometimes companies don’t follow the FCRA rules and they still disclose a sealed or expunged case. If this happens you have a legal right to be given the opportunity to correct inaccurate information. 

Under FCRA, background check companies are required to do the following: 

1. They have to use “fresh” information.
2. They have to correct inaccurate information.
3. They have to inform you of a process to dispute and correct inaccurate information.
4. They have to give you a free copy of your background check report if you ask for it within 60 days of receiving notice that you were not hired.

Employers are allowed to run background checks, but it requires (1) they receive consent from the person, and (2) they provide a copy if they are going to use information in that report against the person. Because records can have errors, in addition to reporting cases that were sealed or expunged, you should always enforce your right to see that background check.

Illinois Human Rights Act 

The Illinois Human Rights Act (abbreviated “IHRA”) is a state law that prohibits discrimination in housing, employment, financial credit, and public accommodations. IHRA includes legal protections for people with criminal records.  

IHRA prohibits most employers and landlords from asking about sealed or expunged cases. It also prohibits employers and landlords from asking about “mere arrests,” whether or not they have been sealed or expunged.  Most employers and employment agencies cannot use an “arrest record,” which includes expunged or sealed records, as a reason to not hire or promote or to discharge or discipline an employee. Private landlords cannot use it as a reason to not rent. 

Employers that are required to conduct fingerprint-based background checks are the exception, as they will have access to sealed felony convictions. 

If employers or landlords violate a person’s rights, they can file a complaint with the Illinois Department of Human Rights. 

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In our next posts, we will review where old arrests and convictions are stored and why we often advise expunging and sealing all eligible records (including non-convictions and “minor” offenses). We will also cover some of the limitations to the relief and where there are other areas in the law that can help overcome barriers based on a criminal record when sealing or expungement is not available, or not enough.