In nearly every state, no. You can't ask a candidate about a sealed or expunged record, and you can't use one against them even if you find out about it some other way. Once a record is sealed or expunged, the law treats it like it never happened. A candidate who checks "No" on your application isn't lying to you. They're telling you the legal truth.
The exact mechanics shift from state to state. I'll get into where. But the general shape holds almost everywhere, so lock that in first.
Sealed means the record still exists somewhere. It's sitting in a court file or a police database. It's just been hidden from public view and from the kind of background check your company runs.
Expunged usually means something stronger. In most states, it means the record gets destroyed or erased outright, not just hidden. Some states use the words "expunge" and "seal" to mean the same thing anyway. Others have their own term entirely, like "set aside" or "vacated."
Here's what actually matters for you as an employer. You don't need to know the exact word. You need to know the effect, and the effect is almost always the same: the record can't be considered. Don't get hung up on terminology. Ask what happened to the case, not what the candidate called it.
One more thing worth knowing, since it's changing fast. A growing number of states have started clearing certain low-level records automatically, sometimes called "clean slate" laws, with no petition and no lawyer required. More candidates than before will have a record that's legally clear without ever filing anything themselves.
In most states, you can't ask about a sealed or expunged case on a job application. You can't ask in an interview. And you can't have your background check vendor dig one up either.
So to say that again a different way: a candidate can lawfully answer "No" to "have you ever been convicted of a crime" if that conviction was later expunged or sealed. That's not a loophole. That's the point of the law. This is the single most common source of confusion I hear from HR people, and it's usually framed as "did they lie to us." Almost always, they didn't.
This rule doesn't care where the information came from. It applies whether the candidate would have told you directly or it showed up through a report your screening company ran. The Fair Credit Reporting Act requires background check companies to follow reasonable procedures for accuracy. A sealed or expunged case showing up on a report is a common source of FCRA problems, because that information shouldn't be sitting in a public database for a vendor to pull from in the first place.
Start from the assumption that your report has an error, not that your candidate lied. Most screening databases pull from bulk court data feeds, and those feeds lag. A record can get sealed by a judge on Tuesday and still show up in a commercial database months later, because nobody told the database.
Don't reject someone outright over it. Run your normal FCRA pre-adverse-action process instead. Send the notice, send a copy of the report, and give them the window they're owed to respond.
If the candidate can show you paperwork proving the case was sealed or expunged, that record shouldn't factor into your decision at all. And it's worth flagging the report back to your screening company so they can fix whatever's feeding them bad data. That part's not optional. A vendor that won't take that feedback seriously is a vendor problem, not a candidate problem.
The "it never happened" rule isn't absolute. There are real carve-outs, and they show up most often in a handful of predictable places.
Fingerprint-based checks tied to state licensing are the biggest one. Healthcare, childcare, elder care, and law enforcement roles often route through a state agency background study instead of a regular commercial background check. Some of those agency-run checks can still see a sealed record even when the public court file can't. That's not a universal rule. It's a pattern worth knowing exists, so you go check it for your own state and role.
Courts, law enforcement, and certain security-clearance positions can also retain their own access. A smaller number of states carve out exceptions for very small employers, or for licensed industries like financial services, where a regulator requires the inquiry by statute.
I'm not going to hand you a state-by-state list and call it final. This changes year to year, sometimes license by license. If you're hiring for a role that touches kids, patients, or elderly care, or anything requiring a state license, check your state licensing board's current rule before you assume either way. That part's not optional.
Candidates don't have to tell you about a sealed or expunged record. Some do it anyway. Habit, honesty, or they just don't realize they're protected. It happens more than you'd think.
The safe move is to not use it. Treat it as if it hadn't been said. Don't ask follow-up questions, and don't let it color the rest of the conversation, even unconsciously. Write down that it was disclosed and that you didn't consider it, in case the decision ever gets questioned.
How much further you're allowed to go here varies by jurisdiction. Some cities and states have layered their own extra rules on top of the general one about exactly what an employer has to say once a candidate brings it up first. I'd rather tell you that plainly than make up a summary of a specific city's rule and have you rely on it. Check your local rule before you build a script around this moment.
Pull out your job application and read the criminal history question on it. Most current, well-written versions already carve out sealed, expunged, juvenile, and arrest-only records from what a candidate has to disclose. If yours doesn't, fix it.
Brief your hiring managers, too. The rule doesn't help if the person doing the interview asks a casual follow-up question the moment a candidate mentions something sealed. That's the leak most companies actually have. It's rarely the paperwork.
And check that the background check package you're ordering matches what you're allowed to consider for the role. A narrower package is sometimes the more compliant choice, not the cheaper one. Ordering more data than you're legally allowed to use just gives you more ways to get this wrong.
The general rule holds almost everywhere. Sealed and expunged means legally gone, full stop. The exceptions are what actually trip people up, because they're narrow, they're state-specific, and guessing wrong on one of them is the expensive part, not the general rule itself.
This is also exactly the kind of thing a good screening partner should already have built into how they run your checks, not something you're left to figure out alone from a court website at eleven at night. If your current vendor can't tell you plainly how they handle sealed and expunged records in your state, that's worth asking them directly before your next hire.