Can I be denied employment for charges pulled on a background check that are sealed?

[vmendo00]

I was arrested in Barling AR. My charges were possession with intent to deliver, possession of drug paraphernalia, maintaining premisses for drug activity, and obstruction of governmental operations. I paid the fine for the obstruction charge, and did drug court in order to seal the other charges.

U.S Bank was able to pull up all this with First Advantage as the background check company. U.S Bank asked me for supportive documentation. I sent them the order to seal for the charges mentioned. Since the obstruction charge was not included in the seal they asked for a police report. I forwarded them the police report which mentions everything that happened in detail that day, including the sealed charges, which in my opinion does not work in my favor.

Can they use that as the sole reason not to employ me? Prior to the background check, I accepted their offer. They asked me to put in a 2 weeks notice which I did (06/22/17) with my at the time current employer. I was supposed to start on 07/06/2017. I am now technically unemployed.

If I read correctly, in Arkansas a sealed conviction “shall be deemed as a matter of law never to have occurred, and the person may state that the underlying conduct did not occur and that a record of the person that was sealed does not exist.” § 16-90-1417(b)(1).

Timeline of what was said: When they contacted me regarding their findings, I did state that the conduct did not occur. They asked for documentation from the court so thats when I got the the order to seal which showed the charges that had been sealed. Next day they ask me about the obstruction charge which I stated that it had been dismissed. They asked for documentation showing that which I provided to them. Next day they ask for the police report which I provided. Still waiting for their decision, according to what I was told by HR when I called. What should I expect?

 

[FlyingRon]

Yes, they can use your criminal history to not employ you. They don't have to determine "as a matter of law" that you committed an offense to hold it against you.

 

[PayrollHRGuy]

The Fair Credit Reporting Act (FCRA) requires the employer do the following. If they have done the "before taking adverse action" part you need to contact the the reporting (First Advantage in this case) and dispute the report. You will need proof that the record was expunged.

Before taking any adverse action, based at least in part on information obtained from an agency, the employer must provide the applicant/employee:
A notice of the adverse action
A copy of the report.
A summary of the applicant’s/employee’s rights (FCRA version).
[Note: Employers should provide the applicant/employee time to review/dispute the report.]

After any adverse action under circumstances in which a report regarding the applicant/employee was obtained from an investigative consumer reporting agency, the user of the investigative consumer report shall advise the applicant/employee against whom the adverse action has been taken and supply the applicant/employee a written notice of the adverse action, including
The name, address, and telephone number of the agency that provided the report (include a toll-free number if the agency is a nationwide CRA).
A statement that the agency did not make the adverse decision and is not able to explain why the decision was made.
A statement of the applicant’s/employee’s right to obtain from the agency, at no charge, the information in the applicant’s/employee’s file if the applicant/employee requests the report within 60 days.
A statement of the applicant’s/employee’s right to dispute directly with the agency the accuracy or completeness of any information provided by the agency.
If the only interaction between the applicant and the user has been by mail, telephone, computer or similar means, see FCRA sec 604 (b) (3) (B).