Low Level Security Clearance for Private Sector Job Working With Gov't Agencies

[ivorytower]

My question involves labor and employment law for the state of: Florida

My question involves criminal records for the state of: Florida

I've tried searching everywhere for the answer to this question, but I think it's too specific for me to find helpful advice on google.

Here are the facts:
I was given a notice to appear in court for petit theft (no finger prints)
I was told to complete a diversionary program (with community service hours)
The program was completed and my record? was expunged
I did a background check on myself through a private company (USSEARCH) and FDLE and found nothing

Here are my questions:
Should I be worried that my record has not been expunged at the federal level?
I'm applying for jobs that involve consulting work with the govt and it appears as if I will be subject to a background check and may need to pass low level clearance. I have not been asked (yet) by my prospective employer whether I've been convicted/charged/arrested or w.e but I just need to know what I should mark if I'm asked? I've seen several job applications that ask that you reveal if you've had something expunged after pleading no contest ...and I'm unsure whether completing a diversionary program qualifies. Also, I've also seen questions that ask whether "you've ever been charged with...." and I'm not sure if I should answer that in the affirmative or not.

I don't want to lie, but I also do not want to admit to something that has been cleared...I know I'm suppose to disclose expungement to government agencies but I have no idea how the law works for private sector companies that are contracted by the government.

Please help, I haven't been able to sleep since I realized this. I'm a straight A student with a Master's degree that's starting to think that everything I've worked for will be taken away. I know it's my fault for doing something stupid...it's been three years and I still think about my mistake everyday.

Thanks everyone.

[ESteele]

You should consider checking the expungement order. In most, if not all, states which allow for expungement of criminal records, the affected individual can “truthfully” deny the existence of his or her criminal record in light of the expungement order. If the law in Florida (or the state in which you obtained the expungement order) allows an affected employee this right, then you should be able to honestly deny the existence of your criminal record.

You will also want to check to determine if the state expungement law prohibits employers from discriminating against prospective applicants and/or employees with expunged criminal records. If the law forecloses such discrimination, it would likely behoove your prospective employers not to take any adverse action against you.

You may want to start with the attorney who represented you in the underlying criminal proceeding and who obtained the expungement order on your behalf. He or she should know whether the state law extends the aforementioned protections to you.

[ivorytower]

You should consider checking the expungement order. In most, if not all, states which allow for expungement of criminal records, the affected individual can “truthfully” deny the existence of his or her criminal record in light of the expungement order. If the law in Florida (or the state in which you obtained the expungement order) allows an affected employee this right, then you should be able to honestly deny the existence of your criminal record.

You will also want to check to determine if the state expungement law prohibits employers from discriminating against prospective applicants and/or employees with expunged criminal records. If the law forecloses such discrimination, it would likely behoove your prospective employers not to take any adverse action against you.

You may want to start with the attorney who represented you in the underlying criminal proceeding and who obtained the expungement order on your behalf. He or she should know whether the state law extends the aforementioned protections to you.

Thank you for your reply. This is the law in Florida...I bolded the part that I don't understand

(4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION. -- Any criminal history record of a minor or an adult which is ordered expunged by a court of competent jurisdiction pursuant to this section must be physically destroyed or obliterated by any criminal justice agency having custody of such record; except that any criminal history record in the custody of the department must be retained in all cases. A criminal history record ordered expunged that is retained by the department is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and not available to any person or entity except upon order of a court of competent jurisdiction. A criminal justice agency may retain a notation indicating compliance with an order to expunge.

(a) The person who is the subject of a criminal history record that is expunged under this section or under other provisions of law, including former s. 893.14, former s. 901.33, and former s. 943.058, may lawfully deny or fail to acknowledge the arrests covered by the expunged record, except when the subject of the record:

1. Is a candidate for employment with a criminal justice agency;

2. Is a defendant in a criminal prosecution;

3. Concurrently or subsequently petitions for relief under this section or s. 943.059;

4. Is a candidate for admission to The Florida Bar;

5. Is seeking to be employed or licensed by or to contract with the Department of Children and Family Services or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the developmentally disabled, the aged, or the elderly as provided in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s. 916.106(10) and (13), s. 985.407, or chapter 400; or

6. Is seeking to be employed or licensed by the Department of Education, any district school board, any university laboratory school, any charter school, any private or parochial school, or any local governmental entity that licenses child care facilities.


1. I wasn't arrested...but I was charged so what if the question asked if I was ever "charged"?
2. Second, if the company is a contractor for the government, but the position that I'm applying to will not be working with Department of Children Family Services OR the Dept of Juvenile Justice am I exempt?

[ESteele]

Again, your best option here appears to be to confer directly with the criminal defense attorney who represented you earlier. He or she is likely “up” on the expungement statute and the court’s decisions interpreting it. Based on his or her experience, your counsel can likely give you the best advice here regarding your right (1) to deny the existence of your criminal record and (2) to be free from employment discrimination for having an expunged criminal record.

With that said, based on what you posted, it seems that the expungement statute allows you to deny the existence of your criminal arrest record. (If you were criminally charged, you were for all practical purposes “arrested,” even though you were never taken into custody.) Since you are not applying to jobs with any of the entities excepted under the statute, in light of the expungement order you should retain the right to truthfully deny the existence of your criminal record with any of your prospective employers.

[ivorytower]

Again, your best option here appears to be to confer directly with the criminal defense attorney who represented you earlier. He or she is likely “up” on the expungement statute and the court’s decisions interpreting it. Based on his or her experience, your counsel can likely give you the best advice here regarding your right (1) to deny the existence of your criminal record and (2) to be free from employment discrimination for having an expunged criminal record.

With that said, based on what you posted, it seems that the expungement statute allows you to deny the existence of your criminal arrest record. (If you were criminally charged, you were for all practical purposes “arrested,” even though you were never taken into custody.) Since you are not applying to jobs with any of the entities excepted under the statute, in light of the expungement order you should retain the right to truthfully deny the existence of your criminal record with any of your prospective employers.

Thank you,
I wasn't ignoring your recommendation about consulting with a lawyer...I just didn't have one/never consulted with one. I went to my court date and was told my a deputy clerk that I qualified for the diversionary program and that I should do it. Later, I received paper work for expungement, which I filled out and filed myself. Thank you very much for your help.

[ESteele]

If you do not have counsel, it would probably be in your best interests to pay the consultation fee and/or pay for an hour or two of research time by a knowledgeable local attorney. Admittedly, the language in the expungement statute you cited appears unambiguous. However, considering the stakes, you would want to have the most update to date and informed information about the effect of the expungement order in general and its impact on your prospective job search in particular.

[free9man]

If you are required to obtain a Government Security Clearance, the SF86 requires disclosure of ALL convictions and/or arrests regardless of sealing or expunging. In that situation you will have to disclose your history but will normally have the opportunity to go over the full details with your background investigator. It's impact will be weighed by how old it was, exactly what it was and any other factors.

[ivorytower]

If you are required to obtain a Government Security Clearance, the SF86 requires disclosure of ALL convictions and/or arrests regardless of sealing or expunging. In that situation you will have to disclose your history but will normally have the opportunity to go over the full details with your background investigator. It's impact will be weighed by how old it was, exactly what it was and any other factors.

Yeah, i'm starting to realize this. I know the job is hoping to immediately hire someone so I can't expect that I will need to obtain secret clearance to work there? I read that it takes approximately 60 days to obtain. All I know is, that it would be a horrible predicament to be in to move out of state for this job and then get fired two months later b/c I didn't get clearance. I'm so crushed.


I also have no idea what they would consider "a long time" since the incident. I was 19 when the incident occurred, but the entire process (expungement, diversionary program and all) went into me turning 20...I'm only 24 now so I think it's still too soon...but who knows?

Thanks for your help everyone.

[free9man]

How long it takes to complete a SC investigation depends a lot on the applicant. It's also possible that the employer will have duties that don't require a SC for the right candidate. Does the job posting indicate a SC is required or that it may be required? Until you actually talk to an investigator, there is no way to know if your situation would disqualify you.

[ivorytower]

How long it takes to complete a SC investigation depends a lot on the applicant. It's also possible that the employer will have duties that don't require a SC for the right candidate. Does the job posting indicate a SC is required or that it may be required? Until you actually talk to an investigator, there is no way to know if your situation would disqualify you.

It's a huge company...my particular job posting does not say anything about clearance (I wouldn't have applied if it did) but I noticed that a lot of positions do. Everyone who has left a review for the company has stated that they've been subject to a background check and urine test so...not sure what kind of background clearance (if any) I will need. I know (now) that if it's an sf-86 form I need to write absolutely everything down...but if it's not an sf-86 I need to consult with a lawyer b/c sometimes I've seen job applications ask if you've ever been "charged with" blah blah blah. I know that I can legally deny arrest and/or conviction, but the letter of the law does not specify if I can deny ever being charged. Anyways, the job description states that I'd be working with a lot of different projects and stuff so they might want to have an individual who can obtain secret clearance.

I know that everything is speculation at this point, and plenty of blathering on my part, it's just that this job (and others like it) require a large move within the next month and a half and not knowing is difficult to swallow...and well quite frankly I don't want to call human resources and ask: "hey, so...do I need government clearance b/c that may be a problem."

A crystal ball or time machine would be nice (hah)