When a criminal record that is eligible for sealing or expungement continues to be reported on your background check, it can signal a serious legal issue. Under both the federal Fair Credit Reporting Act (FCRA) and New York state law, this practice may be unlawful. A sealed or expunged record should not appear in most private employment and housing screenings. If a background check company reports it nonetheless, or fails to correct it after a dispute, they may be violating both the FCRA and New York’s Fair Credit Reporting Act. The implications for individuals can be profound: loss of employment opportunities, denial of rental applications, and significant reputational damage due to non-compliance with established legal standards.

Understanding Sealing and Expungement in New York

While the terms “expunged” and “sealed” are often used interchangeably, it is crucial to note that New York maintains a specific legal distinction. Generally, the state seals criminal records as opposed to expunging them. A sealed record still exists in government databases but is largely inaccessible to private employers, landlords, and the consumer reporting agencies serving them. Importantly, individuals are not typically required to disclose sealed records.

New York law provides four primary pathways for sealing records:

• Automatic sealing for favorable dispositions: This applies to acquittals, dismissals, and adjournments in contemplation of dismissal under CPL § 160.50. In such cases, related fingerprints and booking photographs must be destroyed, successfully removing the record from public accessibility.
• Partial sealing for non-criminal violations: When a charge is reduced to a non-criminal violation, specific records are sealed under CPL § 160.55, although the court file can still be accessed.
• Judicial sealing: Under CPL § 160.59, individuals may petition to seal up to two eligible convictions, usually ten or more years after the completion of their sentence.
• Automatic sealing under the Clean Slate Act: This newly implemented statute allows for the automatic sealing of eligible misdemeanor and felony convictions following a specific waiting period.

True expungement—where a record is completely destroyed—is relatively rare in New York. The most notable example is automatic expungement for certain marijuana-related convictions following the 2021 Marijuana Regulation and Taxation Act. In most cases, sealing is utilized, and when individuals refer to having their record “expunged,” they usually mean it has been sealed.

The Clean Slate Act’s Impact: Changes in November 2024

Signed into law by Governor Hochul in November 2023 and effective from November 16, 2024, the Clean Slate Act introduced a new section, CPL § 160.57, into New York’s Criminal Procedure Law. This legislation allows for the automatic sealing of many criminal convictions after designated waiting periods have elapsed.

The structure is straightforward:

• Misdemeanors: Sealed three years following the conclusion of incarceration or sentence imposition.
• Felonies: Sealed eight years after release from incarceration.
• The waiting period commences only after the successful completion of any probation or post-release supervision.
• Eligibility requires individuals to have no new criminal convictions or open cases during the waiting period.

Certain conviction categories are excluded from Clean Slate sealing, including sex offenses, sexually violent offenses, and most non-drug Class A felonies. Additionally, the provisions apply exclusively to New York state convictions and do not extend to records from other states or federal charges.

For convictions that occurred prior to November 16, 2024, the Office of Court Administration has a three-year period to identify and seal eligible records. This incremental implementation means that throughout 2026 and 2027, many older records will be sealed for the first time—however, the systems that provide data to consumer reporting agencies may not be up to date.

Common Issues: Why Sealed Records May Still Appear on Background Checks

While a sealed record is designed to be invisible on most private background checks, this is often not the case. Here are some common reasons why sealed records might still surface:

• Stale database copies: Many background check companies create their databases using bulk data from original court records, which means they often do not access the live New York court system. When a record is sealed, this change may not be reflected in a company’s database for an extended period.
• Third-party data resellers: Background check vendors frequently source raw criminal data from intermediary suppliers who may operate on their unique timelines for updates. Hence, a single sealing notification may take considerable time before it is acknowledged downstream.
• Matching errors: Despite updates being made in source data, a background check company might still issue a report that incorrectly references the sealed record if its data matching procedures rely on outdated identifiers.
• Clean Slate delays: The phased application of Clean Slate sealing throughout 2027 indicates that companies failing to adapt their data processing protocols may overlook newly sealed cases.

None of these reasons absolve the background check companies from their statutory responsibilities. Both the FCRA and New York law place the onus on these companies to report accurate information, leaving consumers in the position of having to challenge ongoing inaccuracies.

Legal Requirements from Federal and New York Statutes

The FCRA and New York state laws impose important regulations regarding what can and cannot be reported on background checks, and, while overlapping, they have differing standards—New York’s restrictions are often more rigorous than those outlined by federal law.

Federal Regulations: Under the FCRA, records of arrests that did not lead to a conviction cannot be reported if they are more than seven years old, barring significant exceptions in instances such as employment roles requiring substantial salaries. Convictions can be reported indefinitely. The FCRA does not explicitly ban the reporting of sealed or expunged records, but a background check company reporting such a record would likely be in violation of accuracy standards mandated under U.S.C. § 1681e(b).

Dispute Processes: When inaccurate information is identified, the FCRA mandates under § 1681i that background check companies conduct a reasonable reinvestigation within thirty days. A simple confirmation of the initial source data without cross-referencing the seal is typically insufficient to meet this requirement.

New York Regulations: New York’s General Business Law, specifically § 380-j, prohibits the reporting of criminal convictions exceeding seven years from their disposition date, and it does not allow for indefinite reporting of convictions as seen in federal law. Moreover, records of arrests without corresponding convictions or pending charges cannot be reported at all. Certain exceptions apply for large credit transactions and other specific employment situations, but the prohibition against sealed records also stands firm.

Protections Against Discrimination: New York law mandates that even where reporting of sealed records is minimally permissible, there are regulations for using such information in employment decisions. The New York Correction Law requires employers to conduct thorough evaluations before considering a sealed record in hiring decisions, considering factors like the age of the offense and evidence of rehabilitation. Violations against these regulations can have significant legal repercussions.

Steps to Take if a Sealed Record is Reported on Your Background Check

If a sealed record is reflected in your background check, it is essential to take certain action steps to correct this oversight. A structured approach can enhance your position:

• Obtain a copy of the report: If an employer or landlord made a decision based on your background check, you are entitled to a free copy of that report. Document your request.
• Confirm the record sealing: Acquire the sealing order from the relevant court or request a certificate of disposition to establish the sealing status of the record.
• Dispute the information: Send a formal dispute to the background check company, including proof of sealing. Retain copies of all documentation you submit and proof of delivery.
• Document any harm experienced: Keep records of job denials, housing rejections, and any financial impacts, such as lost wages or additional moving costs.
• Act quickly: Be aware of the statute of limitations, which is typically two years after discovering a violation but can vary. Evidence becomes harder to recover over time.
• Consult a qualified attorney: Legal advice may be beneficial, particularly as these cases often involve actions against both background check entities and the employers or landlords that proceed based on inaccurate reports.

Potential Damages for Non-compliance

Under the FCRA, different compensatory avenues are available based on the background check company’s intent. For willful violations, affected individuals may seek statutory damages ranging from $100 to $1,000 for each violation, along with actual financial and emotional harm, punitive damages at the discretion of the court, and coverage for attorney’s fees. Willful negligence can include careless disregard for accurate information.

In the case of negligent violations, individuals can recover actual damages and attorney’s expenses. Even a single negligent act—like an incorrect report of a sealed record—can lead to significant financial harm, particularly if tied to job losses or housing denials.

New York law further enhances available remedies under its Fair Credit Reporting Act and may offer additional claims under related civil rights laws. Such protections allow for civil actions against both background check companies and employers that misuse sealed records.

Understanding the Broader Context

The Clean Slate Act provides critical pathways for individuals with older convictions to reintegrate into the workforce, secure housing, and fully participate in civic life; however, its efficacy relies on adherence by background check companies. When these entities fail, the onus falls on consumers to advocate for their rights, document inaccuracies, and pursue legal recourse as necessary. The FCRA aims to ensure accountability among consumer reporting agencies, mandating they follow reasonable procedures in verifying the accuracy of their reports. When lapses occur, the law mandates restitution for affected individuals.

Should you find that a sealed or expunged record hinders your access to employment, housing, or other opportunities, the window for proactive action is imperative before evidence diminishes over time. Our background check inaccuracies practice page details additional dimensions of FCRA claims, including employer missteps and tenant screening errors, and outlines related issues such as credit report inaccuracies and identity theft complications.