Is Your Criminal History Thwarting Your Job Search? How To enhance Your Employment Prospects
A few months ago I had a discussion with a resident physician who had executed a contract with a hospital in Pennsylvania to start a one year fellowship in the fall. However, less than 90 days before she was set to commence the fellowship, the hospital “revoked” the contract citing her ten year old misdemeanor theft conviction. The hospital took this action despite the fact (1) the resident had truthfully completed her employment application by, inter alia, precisely answering she did not have any felony convictions; and (2) the misdemeanor conviction does not have any bearing on her fellowship duties as a physician.
Last month I spoke with a banker who used to work for a national bank in California and took a promotion with the same bank in Alaska. She had worked for the bank for years in California, had passed its earlier criminal background check and had been bonded. However, within weeks of her start at her new job in Alaska, the bank “discovered” she had an eighteen year old, dismissed misdemeanor marijuana charge from Delaware. The bank proceeded to terminate her because of this dismissed charge.
Beyond the travails of a random physician and banker, these anecdotal accounts mirror a persistent, extensive societal problem: How can ex-offenders conquer their criminal histories in an effort to obtain and keep employment? Approximately 600,000 men and women are released from incarceration yearly. Additionally, every year millions of individuals charged with criminal offenses have their situations disposed of without the imposition of jail time (e.g., dismissed charges; acquittals; probation). In order for these adults to care for themselves and their families, to contribute positively to American society and not to reoffend, they need to find and keep gainful employment. Unfortunately, their criminal histories can constitute a major obstacle to their efforts to go to work.
For the most part, these individuals have to depend on the enlightenment of their prospective employers. The majority of workers in the United States (with the notable exception of the great State of Montana) are hired on an “employment at-will” basis. Under the employment at-will doctrine, a company can decide not to hire a possible at-will employee for any reason as long as said reason does not violate an applicable law (e.g., anti-discrimination statute) or contract (e.g., collective bargaining agreement).
As a consequence, if a company declines to hire an applicant or decides to fire a worker because of his or her criminal history, the employer likely has the legal right to do so. In most jurisdictions, it does not matter whether the inner criminal offense was minor, did not consequence in a conviction and/or has no objective relevance to the inner job duties. The employer retains the right to exercise this employment at-will prerogative in this regard.
Fortunately, a meaningful minority of the states have taken legislative action to ameliorate this harsh reality for workers with criminal histories. Fourteen states prohibit discrimination against some form of ex-offender discrimination in the workplace. Arizona, Colorado, Connecticut, Florida, Kentucky, Louisiana, Minnesota, New Mexico and Washington ban ex-offender discrimination in public employment. Five other states, Hawaii, Kansas, New York, Pennsylvania and Wisconsin, prohibit this form of job discrimination in both private and public employment. (Additionally, a number of municipalities, e.g., San Francisco, CA, have restricted employers’ ability to rely on criminal record information in making hiring decisions.)
For individuals with criminal histories covered by one of these anti-discrimination laws, their prospective employers cannot lawfully deny them employment based on said histories absent the existence of a “reasonable” or “direct” relationship between said history and the hypothesizedv employment. For example, a resident physician in Pennsylvania may have a legally cognizable method of challenging the denial of a hospital fellowship based on an unrelated, ten year old misdemeanor theft conviction. Similarly, pursuant to the state’s anti-discrimination law a banker in New York could successfully challenge a release based on an eighteen year old marijuana charge.
In contrast, though, a prospective banker in any of the aforementioned five states would likely not have a cure if he or she had a felony embezzlement conviction in light of the putative causal relationship between the character of the conviction and the duties of the sought after position. It is also worth re-emphasizing that this “relationship test” matters only in the aforementioned states which have extremely or restricted discrimination against ex-offenders in private and/or public employment. As a consequence, irrespective of the character of his or her criminal history, a similarly located job applicant seeking work in the majority of the states would not have any possible method of direct legal redress because these of states do not prohibit this form of discrimination in the private or public sector.
If you find yourself with a criminal record and seeking work in one of these states without a discrimination ban, you may nonetheless have other options obtainable to ameliorate the potentially negative impact of your record on your job search. for example, individuals charged with less serious misdemeanors (e.g., disorderly conduct; fare jumping) and possessing comparatively clean criminal records may convince the estimate to agree to a “probation before judgment” or “PBJ” disposition as opposed to a conviction without jail time. basically, a PBJ or a “stet” disposition places the inner criminal matter in abeyance for a year. If during that one year period the defendant does not commit another offense, then the inner charge is dismissed. (If, however, the defendant commits another offense during this probation period, the prosecutor can charge them with this second offense and seek a conviction for the first offense.) The principal advantage with a PBJ is the defendant avoids having a conviction appear on his or her record. In conducting employment background inquiries, many companies only focus on convictions. The absence of a conviction can only enhance an individual’s prospects of gaining prospective employment.
If (1) an individual can resolve a criminal charge with a dismissal, a nolle prosequi or “nol pros” motion (i.e., a motion by the state attorney declining to prosecute the charge), a PBJ or stet, or similar non-conviction disposition, or (2) an individual is found guilty only of a stated nuisance crime (e.g., disturbing the peace) or a single non-violent criminal act, then he or she may afterward appeal the court to have the criminal record “expunged.” If a worker with this kind of criminal record can successfully have his record expunged, then the state will remove reference of this criminal activity from court, police and motor means records and files. additionally, the effect of the expungement order allows the affected individual to “truthfully” deny the existence of the above-described charges or convictions when seeking prospective employment.
If you have a more substantial criminal record (e.g., a “serious” felony conviction), then you may analyze other alternatives in an effort to erase or minimize the effect of your record on your job search. Generally, if a former felon has completed his sentence, has remained out of trouble for the required period of time and has led a productive life in the interim, then he or she can appeal the state clemency board or an similar state agency for a pardon. With a pardon, the ex-offender can then seek to have his or her record expunged. (In some jurisdictions, the inner records are automatically expunged with the issuance of the pardon.)
In addition, similar to the time of action of obtaining pardons, some states allow ex-offenders to appeal the sentencing court to have their convictions “set aside” based on their completion of the sentence and their years as a law-abiding and productive citizen. Once the conviction is set-aside, the ex-offender can move to have his or her record expunged.
If an individual with a felony record cannot successfully appeal for a pardon or a conviction set aside, he may want to analyze whether he can acquire a “certificate of relief from disabilities” or a “certificate of good conduct.” Essentially, executive branch agencies in certain states (e.g., New York, Illinois) issue such certificates to qualified ex-offenders in order to “create a presumption of rehabilitation in regard to the offense or offenses stated therein.” See N.Y. Correct. Law § 753. An employer or a licensing agency in the issuing state then has an obligation under law to “take into account” an applicant’s certificate in making a hiring or licensing decision. See N.Y. Correct. Law § 753(2). consequently, such a certificate may considerably bolster an objectively rehabilitated ex-offender’s chances of gaining employment and/or securing a specialized license (e.g., a barbering license).
In summary, if you have a criminal record of any kind, then you will want to analyze any and all avenues to eliminate the existence of your record or to minimize the record’s impact on your employment options. Those with minor, “youthful indiscretion” misdemeanor charges or convictions on their record should find the time of action of scrubbing your record comparatively straightforward, if not easy. For those of you with more serious criminal records, this road may prove more arduous, but potentially doable. Considering that many employers can and do include in unvarnished discrimination against ex-offenders irrespective of the inner the disposition of the offense and their manifested rehabilitation, these post-judgment steps can only help enhance your employment prospects.
Similarly, if you have encountered other workplace difficulties, you too can effectively seek your cure. You do not have to persevere mistreatment in silence. You have rights!