A late-September 2026 employer advisory is urging companies to revisit how they handle criminal records that have been sealed, expunged or set aside under state Clean Slate laws, citing overlapping federal and state restrictions on using that information in hiring decisions. The advisory, published September 29, comes as more than a dozen states have brought automatic sealing systems into routine operation and as private employers across multiple jurisdictions face explicit background-check rules tied to those seals. For job applicants with sealed records, the practical effect of the compliance push is that the question of whether an old conviction will surface at hiring has become more procedurally predictable and more legally constrained at the same time.
What the advisory is asking employers to do
The advisory walks employers through a four-part compliance review. First, audit which states in which the company hires and identify which of those states now seal eligible records automatically rather than by petition. Second, confirm that the company's background-screening vendor is configured to suppress sealed and expunged records from the report that hiring managers see, or to flag them with a clear notation that the record is sealed under state law and may not be used as the basis for an adverse decision. Third, train hiring managers and HR staff on the difference between a record that has been sealed, a record that has been expunged, a record that was dismissed, and a record that is still open. Fourth, document the review process in writing so that the company can demonstrate its compliance if challenged by an applicant or regulator.
None of these steps are new requirements under federal law, but the combined effect is significant. The U.S. Equal Employment Opportunity Commission has long held that using criminal history in a way that has a disparate impact on protected categories can violate Title VII, and a 2025 enforcement sweep against background-check vendors produced consent decrees that tightened how sealed records are reported. State fair-chance and Clean Slate laws layer additional restrictions, often with private rights of action and statutory damages for employers that ignore them.
Where state Clean Slate laws intersect background checks
The states that operate automatic sealing systems — Pennsylvania, Michigan, New Jersey, Illinois, Virginia, Utah, Colorado, Washington, Delaware, Minnesota and a handful of others — typically treat sealed records as legally nonexistent for most purposes, including employment. A sealed record generally cannot be reported to a private employer, cannot be the basis for an adverse hiring decision, and cannot be used to disqualify an applicant from a license or certification. Some states go further and treat any employer that asks about a sealed record as having committed a separate violation, with penalties that scale per violation rather than per applicant.
The complication is that background-screening vendors operate across state lines and rely on county-level data sources, not on a single national Clean Slate database. A record that is sealed in Pennsylvania may still surface in a vendor's report if the vendor is pulling raw court data without applying the state's sealing rules. The advisory is, in effect, asking employers to verify that the vendor's report matches the legal state of the record, not just the raw court file.
What job applicants should know
For applicants with sealed records, the practical advice has not changed: do not volunteer information about a sealed record on a job application or in an interview, and if an employer or a background-check vendor surfaces a sealed record, treat that as a potential violation and document the interaction. State labor agencies, state attorneys general and the EEOC all accept complaints about background-check misuse, and several states have hotlines specifically for Clean Slate violations.
The advisory adds a second layer of practical advice. Because the compliance review takes time, applicants who know their record has been sealed should consider attaching proof of sealing to their application or carrying it to the interview. A state-issued sealing order, a certificate of disposition, or a printout from the state's online record portal is usually enough to head off a hiring manager who is uncertain about how to interpret a vendor's report. Applicants who do not have a copy of the sealing order can usually obtain one from the court that issued it or from the state's expungement or Clean Slate office.
What this does not change
The advisory does not extend federal law, does not preempt state sealing rules, and does not change the underlying eligibility standards for automatic sealing. A record that is not eligible for sealing under a state's Clean Slate statute remains reportable and remains a record that the applicant may be required to disclose under state law. Federal background checks for certain licensed positions, such as those involving vulnerable populations, are also carved out of state sealing rules in most states, and the advisory explicitly notes that those positions are unaffected.
The advisory also does not address the gap between state and federal record systems. A conviction that is sealed in state court can still appear in a federal background check, and a federal conviction that is set aside under federal law does not always affect the state record. Applicants with multi-jurisdictional records should treat state and federal sealing as separate processes with separate eligibility rules.
What to watch for in the next few months
Three near-term developments are worth following. First, several state legislatures have introduced bills that would require background-screening vendors to honor state sealing rules at the data-source level rather than at the report-rendering level, which would close the vendor gap described above. Second, the EEOC has signaled that additional guidance on sealed records is forthcoming. Third, at least one state labor agency has indicated that it will audit employer compliance with Clean Slate background-check rules in the first half of 2027, and the audit results are likely to shape how aggressively other states approach enforcement. Job applicants with sealed records who are applying for positions in any of the states with automatic sealing systems should expect the question of whether an old conviction will surface to become increasingly procedural and increasingly protective over the next year.