Is Your Criminal Record Thwarting Your Job Search? How to improve your job prospects
A few months ago I had a conversation with a resident physician who had signed a contract with a Pennsylvania hospital to start a one-year fellowship in the fall. However, less than 90 days before she began the fellowship, the hospital “revoked” the contract citing her conviction for theft for a felony less than ten years. The hospital took this action despite the fact that (1) the resident had sincerely completed her job application, among other things, accurately answering that she had no felony convictions; and (2) the misdemeanor conviction is unrelated to her scholarship duties as a physician.
Last month I spoke with a banker who used to work for a national bank in California and accepted a promotion at the same bank in Alaska. She had worked for the bank for years in California, had passed the previous criminal background check, and had been insured. However, within weeks of starting his new job in Alaska, the bank “discovered” he had an 18-year-old misdemeanor marijuana charge, dismissed by Delaware. The bank proceeded to fire her because of this dismissed charge.
Beyond the work of a random doctor and banker, these anecdotal accounts reflect a persistent and pervasive social problem: How can ex-offenders overcome their criminal records in an effort to secure and maintain employment? Approximately 600,000 men and women are released from incarceration annually. Additionally, each year millions of people charged with criminal offenses have their cases resolved without the imposition of jail time (eg, charges dismissed, acquittals, probation). In order for these adults to be able to care for themselves and their families, to contribute positively to American society, and not to relapse, they need to find and keep gainful employment. Unfortunately, your criminal record can be a major obstacle to your efforts to get to work.
For the most part, these people have to rely on the knowledge of their potential employers. Most workers in the United States (with the notable exception of the great state of Montana) are hired by “employment at will.” Under the doctrine of employment at will, a company may decide not to hire a potential employee at will for any reason as long as such reason does not violate an applicable law (for example, anti-discrimination statute) or contract (for example, collective bargaining) . agreement).
As a consequence, if a company refuses to hire an applicant or decides to fire a worker due to a criminal record, the employer likely has a legal right to do so. In most jurisdictions, it does not matter if the underlying offense was minor, did not result in a conviction, and / or has no objective relevance to the underlying employment obligations. The employer reserves the right to exercise this prerogative of employment at will in this regard.
Fortunately, a significant minority of states have taken legislative action to improve this harsh reality for workers with criminal records. Fourteen states prohibit discrimination against some form of discrimination against ex-offenders in the workplace. Arizona, Colorado, Connecticut, Florida, Kentucky, Louisiana, Minnesota, New Mexico, and Washington prohibit discrimination against ex-offenders in public employment. Five other states – Hawaii, Kansas, New York, Pennsylvania and Wisconsin – prohibit this form of employment discrimination in both public and private employment. (Additionally, several municipalities, for example, San Francisco, CA, have restricted the ability of employers to rely on criminal history information to make hiring decisions.)
For individuals with a criminal record covered by one of these anti-discrimination laws, their prospective employers cannot legally deny employment based on such record without a “reasonable” or “direct” relationship between that record and the proposed job. For example, a Pennsylvania resident physician may have a legally recognizable means of contesting a denial of a hospital scholarship on the basis of an unrelated minor theft conviction of ten years. Similarly, under state anti-discrimination law, a New York banker could successfully challenge a discharge based on an eighteen-year marijuana charge.
However, in contrast, a prospective banker in any of the five aforementioned states would likely have no remedy if he or she were convicted of misappropriation of funds for a felony in light of the putative causal relationship between the nature of the conviction and the defendant’s duties. position. It is also worth re-emphasizing that this “relationship test” only matters in the aforementioned states that have prohibited or restricted discrimination against ex-offenders in public and / or private employment. As a consequence, regardless of the nature of their criminal record, a similarly situated job seeker seeking work in most states would not have any potential means of direct legal rectification because these states do not prohibit this form of discrimination in the sector. public or private.
If you have a criminal record and are looking for work in one of these states without a prohibition on discrimination, you may have other options available to improve the potentially adverse impact of your record on your job search. For example, people charged with less serious crimes (eg, disorderly conduct; fee hopping) and who have a relatively clean criminal record can convince the judge to agree to “pretrial parole” or disposition “PBJ” in lieu of a sentence without jail time. . In essence, a PBJ or “stet” provision leaves the underlying criminal matter on hold for one year. If during that one-year period the defendant does not commit another crime, the underlying charge is dismissed. (However, if the defendant commits another offense during this probation period, the prosecutor can charge him with this second offense and seek a conviction for the first offense.) The main advantage with a PBJ is that the defendant prevents a conviction from appearing on his or her record. When conducting employment background checks, many companies only focus on convictions. The absence of a conviction can only improve a person’s prospects for possible employment.
If (1) a person can resolve a criminal charge with a termination, a nolle prosequi or “nol pros” motion (that is, a motion by the state’s attorney refusing to prosecute the charge), a PBJ or stet, or a sentence without a similar disposition conviction, or (2) a person is found guilty of only one specific nuisance offense (for example, disorderly conduct) or of a single non-violent criminal act, then he or she may later apply to the court that ” expunge the criminal record. ” “If a worker with this type of criminal record can successfully expunge their record, the state will remove the reference to this criminal activity from the records and files of the court, police, and motor vehicles. Additionally, the effect of the order of Elimination allows the affected person to “sincerely” deny the existence of the charges or convictions described above when seeking potential employment.
If you have a more substantial criminal record (for example, a “felony” felony conviction), you can explore other alternatives in an effort to erase or minimize the effect of your record on your job search. Generally, if a former offender has served his or her sentence, has been out of trouble for the required period of time, and has led a productive life in the meantime, then he or she can apply for clemency to the state board of clemency or a similar state agency. . . With a pardon, the ex-offender can request that his record be expunged. (In some jurisdictions, underlying records are automatically deleted upon issuance of clemency.)
Also, similar to the pardon process, some states allow ex-offenders to petition the sentencing court to “vacate” their convictions based on their completion of the sentence and their years as a productive and law-abiding citizen. Once the conviction is vacated, the ex-offender can request expungement from his record.
If a person with a criminal record cannot successfully apply for a pardon or a vacated conviction, you may want to explore whether you can get a “certificate of relief from disabilities” or a “certificate of good conduct.” Essentially, executive branch agencies in certain states (eg, New York, Illinois) issue such certificates to qualified ex-offenders for the purpose of “creating a presumption of rehabilitation with respect to the offense or offenses specified therein.” See NY Correct. Law § 753. An employer or a licensing agency in the issuing state is required by law to “take into account” an applicant’s certificate when making a hiring or licensing decision. See NY Correct. Law § 753 (2). Consequently, such a certificate can significantly enhance an objectively rehabilitated ex-offender’s chances of obtaining employment and / or obtaining a professional license (for example, a barber’s license).
In short, if you have a criminal record of any kind, then you will want to explore each and every avenue to eliminate the existence of your record or minimize the impact of the record on your employment options. Those with minor “juvenile indiscretion” charges or convictions on their record should find the process of expunging their record relatively straightforward, if not easy. For those of you with a more serious criminal record, this path may be more arduous, but potentially feasible. Given that many employers can and do openly discriminate against ex-offenders regardless of the underlying disposition of the offense and its overt rehabilitation, these post-trial steps can only help improve your job prospects.
Similarly, if you have encountered other difficulties in the workplace, you can also look for an effective solution. You don’t have to endure abuse in silence. You have rights!
