My Expunged Record Is Still Showing on Background Checks. Is That Legal?

If a criminal record that should be sealed or expunged is still appearing on your background check, it is often not legal, and you may have claims under both the federal Fair Credit Reporting Act and New York law. A sealed or expunged record is supposed to be invisible in most private employment and housing screenings. When a background check company reports it anyway, or fails to correct it after you dispute it, the company may be violating the FCRA, the New York Fair Credit Reporting Act, or both. The stakes for consumers are real: lost jobs, denied apartments, and reputational harm that would not have happened if the law had been followed.

Sealed Versus Expunged: What New York Actually Does

People often use "expunged" and "sealed" interchangeably, but in New York, there is almost always a technical difference. New York generally seals criminal records rather than expunging them. A sealed record continues to exist in government databases, but access is sharply restricted. Private employers, landlords, and the consumer reporting agencies that serve them are not supposed to see the record, and you are generally not required to disclose it.

There are several pathways to sealing under New York law:

• Favorable dispositions such as acquittals, dismissals, and adjournments in contemplation of dismissal are automatically sealed under CPL § 160.50. Fingerprints and booking photos are ordered destroyed and the record is removed from public access.
• Reductions to a non-criminal violation result in partial sealing under CPL § 160.55. The law enforcement record is sealed, although the court file remains available.
• Judicial sealing of up to two eligible convictions has been available under CPL § 160.59 for consumers who successfully petition the sentencing court, typically ten or more years after completing the sentence.
• Automatic sealing under the Clean Slate Act is now available under the new CPL § 160.57 for eligible misdemeanor and felony convictions after a waiting period (discussed below).

True expungement, where the record is destroyed as if it never existed, is rare in New York. The most prominent example is the automatic expungement of certain marijuana-related convictions following the 2021 Marijuana Regulation and Taxation Act. For most other offenses, sealing is the mechanism, and when people say their record is "expunged," they usually mean sealed.

The Clean Slate Act: What Changed in November 2024

The Clean Slate Act, signed by Governor Hochul in November 2023 and effective November 16, 2024, added a new CPL § 160.57 to the Criminal Procedure Law. For the first time in New York, many criminal convictions are now sealed automatically once certain waiting periods pass.

The core framework is straightforward:

• Misdemeanors are sealed three years after sentencing or release from incarceration, whichever is later.
• Felonies are sealed eight years after sentencing or release from incarceration, whichever is later.
• The waiting period does not begin until you have completed any probation or post-release supervision.
• You must have no new criminal convictions during the waiting period, and no open cases at the time of sealing.

Several categories of convictions are excluded from Clean Slate sealing, including sex offenses, sexually violent offenses, and most non-drug Class A felonies. Eligibility is also limited to New York state convictions; the Act does not touch records from other states or federal convictions.

For convictions that predate November 16, 2024, the Office of Court Administration has up to three years to identify and seal eligible records. That rolling implementation means that throughout 2026 and 2027, large numbers of older records are being sealed for the first time, and the systems that feed consumer reporting agencies are not always keeping up.

Why Sealed Records Still Appear on Background Checks

A sealed record is supposed to disappear from most private background checks. In practice, it often does not. There are several common reasons:

• Stale database copies. Background check companies do not search the live New York court system. They buy or scrape bulk data from court records, aggregate it into their own databases, and search those databases. When a court seals a record, the seal is reflected in the court's system, but the background check company's copy is not automatically updated. The stale copy keeps the record visible for weeks, months, or years.
• Third-party data resellers. Many background check companies license raw criminal data from intermediary vendors that aggregate public records nationwide. Those vendors update on their own schedules, and updates do not always propagate to downstream customers. A single sealing event can take multiple data hops before it is actually honored.
• Matching errors. Even when the sealing is properly reflected in the source data, a background check company may still produce a report that mentions the sealed record if its matching logic relies on outdated identifiers or fails to apply the seal flag correctly.
• Clean Slate lag. Because Clean Slate sealing is being applied in waves through 2027, background check companies that have not built proper Clean Slate workflows into their data pipelines are likely to miss sealings even when the court system has recorded them.

None of these explanations are legal defenses. The FCRA and New York law place the burden on the background check company to ensure the accuracy of what it reports, not on the consumer to keep correcting the same error.

What Federal and New York Law Require

Two statutory frameworks govern what can and cannot appear on your background check. They overlap, but they are not identical, and in New York, the state rules are often stricter than the federal floor.

The federal FCRA. Under 15 U.S.C. § 1681c, records of arrest that did not result in conviction cannot be reported if they are more than seven years old. Convictions, under federal law alone, can be reported indefinitely. The federal FCRA does not expressly prohibit reporting a sealed or expunged record, but a background check company that reports one is almost always also violating 15 U.S.C. § 1681e(b), which requires consumer reporting agencies to follow reasonable procedures to ensure the maximum possible accuracy of the information they report. A sealed record is, by law, no longer part of your public criminal history, and reporting it as a current conviction is inaccurate on its face.

The FCRA dispute process. When you dispute inaccurate information, 15 U.S.C. § 1681i requires the background check company to conduct a reasonable reinvestigation within thirty days and either verify the information or delete it. A reinvestigation that simply rubber-stamps the original source without checking whether the record has been sealed does not meet the statutory standard.

New York law is stricter. Under NY Gen. Bus. Law § 380-j, which is the prohibited information section of the New York Fair Credit Reporting Act, a New York consumer reporting agency cannot report records of criminal conviction that are more than seven years old from the date of disposition, release, or parole. New York does not share the federal rule that convictions can be reported forever. New York law also prohibits reporting arrest or criminal charge information unless there was a conviction or the charges are still pending. There are narrow exceptions for high-dollar credit transactions and large life insurance applications, but neither applies in a typical employment or housing background check.

Discrimination protections layered on top. Even in the limited contexts where a sealed record may lawfully be visible, New York law restricts how it can be used. NY Correction Law Art. 23-A requires employers to conduct an individualized analysis before denying employment based on a criminal record, weighing factors such as the age of the offense, its relationship to the job, and evidence of rehabilitation. Using a sealed record against you without that analysis, or in contexts where the seal should have been respected in the first place, may independently violate New York law.

What to Do If a Sealed Record Appears on Your Background Check

Practical steps matter, and the order matters. Documentation created now becomes the evidence that supports a legal claim later.

• Get a copy of the report. If a prospective employer or landlord took adverse action based on the background check, the FCRA entitles you to a free copy of the report they used. Request it in writing and keep the response.
• Confirm the sealing. Obtain the sealing order from the court that handled the case, a certificate of disposition, or the Office of Court Administration response confirming Clean Slate treatment. If the record was supposed to be sealed under CPL § 160.50 or CPL § 160.57, the court file will reflect that.
• Dispute in writing. Send a written dispute directly to the background check company that produced the report. Include proof of sealing. Keep a copy of everything you send and proof of delivery. Under 15 U.S.C. § 1681i, the company must reinvestigate within thirty days.
• Document the harm. Save the job rejection, the housing denial, correspondence from the prospective employer or landlord, and any evidence of financial impact such as lost wages, relocation costs, or continued rent at an inadequate prior residence.
• Do not delay. The FCRA has a statute of limitations of two years from the date you discover the violation or five years from the date of the violation, whichever is shorter. See 15 U.S.C. § 1681p. New York law has its own timelines. Evidence also gets harder to recover as time passes.
• Consult a consumer protection attorney. These cases frequently involve claims against both the background check company and the employer or landlord who took action on the report. A lawyer can evaluate both angles and determine which claims are strongest. At Rausa Russo Law, these evaluations are free.

What Damages May Be Available

The FCRA provides two damages tracks depending on the background check company's state of mind.

For willful violations under 15 U.S.C. § 1681n, you may recover statutory damages of $100 to $1,000 per violation, actual damages for financial and emotional harm, punitive damages at the court's discretion, and your attorney's fees and costs. Willfulness can include reckless disregard for the accuracy of the information, not only intentional misconduct.

For negligent violations under 15 U.S.C. § 1681o, you may recover actual damages and attorney's fees. Even a single negligent failure to honor a seal can generate meaningful damages when it is paired with a lost job or a denied apartment.

New York law adds additional remedies under the New York Fair Credit Reporting Act and, depending on the facts, under the New York Human Rights Law and Correction Law Article 23-A. Where an employer's use of the sealed record is itself unlawful, separate claims against the employer may be available in parallel with claims against the background check company.

The fee-shifting provisions in both federal and New York law are the reason most consumer protection attorneys take these cases on a contingency basis at no out-of-pocket cost to the client. If you win, the defendant pays the fees.

The Bigger Picture

The Clean Slate Act was designed to give New Yorkers with old convictions a realistic path back into employment, housing, and civic life. That design only works if background check companies actually honor the seal. When they do not, the burden falls back on the consumer to dispute, document, and, when necessary, sue. The FCRA was written precisely for this kind of accountability. Consumer reporting agencies have an affirmative legal duty to follow reasonable procedures, to conduct reasonable reinvestigations, and to tell the truth about the information they sell. When they fall short, the law provides a remedy.

If a sealed or expunged record is costing you jobs, apartments, or opportunities, the time to act is before the evidence becomes harder to recover. Our background check errors practice page covers the broader landscape of FCRA claims, including employer adverse action failures and tenant screening errors. Related practice areas include credit report errors and identity theft, which often overlap with background check disputes when records have been misattributed across multiple databases.