Washington State Disability Services - Is Your Criminal History Thwarting Your Job Search? How To heighten Your Employment Prospects
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A few months ago I had a argument with a resident physician who had executed a ageement with a hospital in Pennsylvania to start a one year fellowship in the fall. However, less than 90 days before she was set to activate the fellowship, the hospital "revoked" the ageement 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, accurately 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.
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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 halt her because of this dismissed charge.
Beyond the travails of a random physician and banker, these anecdotal accounts reflect a persistent, total societal problem: How can ex-offenders overcome their criminal histories in an attempt to obtain and keep employment? approximately 600,000 men and women are released from incarceration annually. Additionally, every year millions of individuals expensed with criminal offenses have their cases 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 honestly 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 preponderant exception of the great State of Montana) are hired on an "employment at-will" basis. Under the employment at-will doctrine, a company can decree not to hire a inherent at-will laborer for any hypothesize as long as said hypothesize does not violate an applicable law (e.g., anti-discrimination statute) or ageement (e.g., collective bargaining agreement).
As a consequence, if a company declines to hire an applicant or decides to fire a laborer because of his or her criminal history, the boss likely has the legal right to do so. In most jurisdictions, it does not matter whether the basic criminal offense was minor, did not supervene in a conviction and/or has no objective relevance to the basic job duties. The boss retains the right to exercise this employment at-will prerogative in this regard.
Fortunately, a essential 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 collective employment. Five other states, Hawaii, Kansas, New York, Pennsylvania and Wisconsin, prohibit this form of job discrimination in both private and collective employment. (Additionally, a estimate of municipalities, e.g., San Francisco, Ca, have restricted employers' potential to rely on criminal description data in production 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" connection between said history and the proposed employment. For example, a resident physician in Pennsylvania may have a legally cognizable means of piquant 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 removal 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 remedy if he or she had a felony embezzlement conviction in light of the putative causal connection between the nature 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 prohibited or restricted discrimination against ex-offenders in private and/or collective employment. As a consequence, irrespective of the nature of his or her criminal history, a similarly situated job applicant seeking work in the majority of the states would not have any inherent means of direct legal redress because these of states do not prohibit this form of discrimination in the private or collective sector.
If you find yourself with a criminal description and seeking work in one of these states without a discrimination ban, you may nonetheless have other options ready to ameliorate the potentially adverse impact of your description on your job search. For instance, individuals expensed with less serious misdemeanors (e.g., disorderly conduct; fare jumping) and possessing relatively clean criminal records may convince the judge to agree to a "probation before judgment" or "Pbj" disposition as opposed to a conviction without jail time. In essence, a Pbj or a "stet" disposition places the basic criminal matter in abeyance for a year. If while that one year duration the defendant does not commit other offense, then the basic charge is dismissed. (If, however, the defendant commits other offense while this probation period, the prosecutor can charge them with this second offense and seek a conviction for the first offense.) The essential advantage with a Pbj is the defendant avoids having a conviction appear on his or her record. In conducting employment background inquiries, many fellowships only focus on convictions. The absence of a conviction can only improve an individual's prospects of gaining prospective employment.
If (1) an individual can decree 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 specified nuisance crime (e.g., disturbing the peace) or a single non-violent criminal act, then he or she may subsequently motion the court to have the criminal description "expunged." If a laborer with this type of criminal description can successfully have his description expunged, then the state will remove reference of this criminal action from court, police and motor vehicle records and files. Moreover, the supervene 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 tremendous criminal description (e.g., a "serious" felony conviction), then you may examine other alternatives in an attempt to erase or minimize the supervene of your description on your job search. Generally, if a former felon has completed his sentence, has remained out of issue for the essential duration of time and has led a efficient life in the interim, then he or she can motion the state clemency board or an analogous state agency for a pardon. With a pardon, the ex-offender can then seek to have his or her description expunged. (In some jurisdictions, the basic records are automatically expunged with the issuance of the pardon.)
In addition, similar to the process of obtaining pardons, some states allow ex-offenders to motion the sentencing court to have their convictions "set aside" based on their completion of the sentence and their years as a law-abiding and efficient citizen. Once the conviction is set-aside, the ex-offender can move to have his or her description expunged.
If an individual with a felony description cannot successfully motion for a pardon or a conviction set aside, he may want to examine whether he can obtain a "certificate of relief from disabilities" or a "certificate of good conduct." Essentially, administrative subject agencies in sure states (e.g., New York, Illinois) issue such certificates to qualified ex-offenders in order to "create a presumption of resumption in regard to the offense or offenses specified therein." See N.Y. Correct. Law § 753. An boss or a licensing agency in the issuing state then has an compulsion under law to "take into account" an applicant's certificate in production a hiring or licensing decision. See N.Y. Correct. Law § 753(2). Accordingly, such a certificate may significantly bolster an objectively rehabilitated ex-offender's chances of gaining employment and/or securing a expert license (e.g., a barbering license).
In summary, if you have a criminal description of any type, then you will want to examine any and all avenues to eliminate the existence of your description or to minimize the record's impact on your employment options. Those with minor, "youthful indiscretion" misdemeanor charges or convictions on their description should find the process of scrubbing your description relatively straightforward, if not easy. For those of you with more serious criminal records, this road may prove more arduous, but potentially doable. Inspecting that many employers can and do engage in unvarnished discrimination against ex-offenders irrespective of the basic the disposition of the offense and their manifested rehabilitation, these post-judgment steps can only help improve your employment prospects.
Similarly, if you have encountered other workplace difficulties, you too can effectively seek your remedy. You do not have to undergo mistreatment in silence. You have rights!
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