You’ve prepared the perfect resume, cover letter and follow-up email.
The job is full of rights: Right Town, Right Position and Right Salary. You have the background experience, references and education.
The phone interview went great, until the person on the other end mentions, “Hey, I’m sure this isn’t an issue for you, but we have to run a background check. Anything I should know about?”
That’s when it becomes important to know not only How to Answer Job Application Questions, but also What To Answer pertaining to Criminal Charges, Traffic Offenses and Arrests.
Best Advice: Try to Avoid a Criminal Conviction, If At All Possible
“No kidding. I get that Counselor. That’s not really an option now.”
This is one of those areas of law that is likely as maddening to Criminal Defense Lawyers as it is to clients. We all make mistakes.
Some people’s mistakes involve minor traffic offenses. Others have taken an unfortunate turn, doing something that surprises even them. We regularly hear:
- “I wasn’t taught that way”
- “I wasn’t thinking”
- “I had a substance abuse problem”
- “I was wrong”
- “I made the worst mistake of my life”
- “I really am a good person”
- “Is there anything I can do?”
One of my favorite Judges in North Carolina once shared with me in Court, after I had spent a fair amount of time trying to distinguish a really nice person from the crime charged, his theory on defendants (and for the record I’m paraphrasing):
Bill, I’ve been on the bench a long time. I’ve seen thousands of people stand before me and I can honestly say, there is a very small percentage of people whom I believe are just inherently bad or evil. It’s probably less than 1% of defendants in court. What really happens is that good people occasionally make bad decisions. I don’t think your client is a bad person.
With more than twenty years under my belt wading through the trenches of Criminal and Traffic Court in North Carolina, seldom before or since have I heard such sage commentary on our system of justice and of human nature in general.
Again, we all make mistakes. Some people make more than others. Some people get caught and some people don’t.
And yet, employers have an increasing tendency to eliminate even the possibility of a job to an applicant with a criminal history. “Youthful indiscretions” and learning from mistakes, and forgiveness and forbearance for the same, have a limit.
That is especially true for cases involving dishonesty, like Larceny, Theft, Embezzlement and crimes involving allegations of violence or poor moral turpitude.
That is the exact reason it is important to retain an attorney if things come up. An experienced lawyer can help guide you through the process.
It may help to retain legal counsel. The system isn’t always fair and computers have long memories. – Bill Powers
Unfortunately, it may take years going it alone and more than one lost job opportunity before someone calls an attorney and says, “What Can I Do?”
Lawyers certainly are not required; but, we tend to be helpful. Experienced counsel will ask a lot of questions, review background materials and after careful consideration, provide sound legal advice.
One good way to avoid having to disclose a criminal conviction is to limit the chances for or ameliorate the criminal conviction itself, if that is at all possible. That is not always an option.
Attorneys offer advice, not promises or guarantees. There are few certainties if life, let alone in the legal system.
It would be a very bad idea indeed to assume a dismissal ends the story. Many, if not most future employers, will want to know about “charges” and “arrests” as well.
There is no law in North Carolina that says you must hire a lawyer. That is also true for haircuts and dentistry.
What Do I Have to Report or Answer About My Criminal History?
That is a difficult question because the answer is, “It Depends” and almost always ends with the response, “What Did They Ask?”
When it comes to questions Employers ask, that can be difficult to predict. See Below: Have You Been Convicted of a Crime?
More obvious concerns involve the EEOC Equal Employment Opportunity Commission and FCRA Fair Credit Reporting Act laws and tend to center of issues of discrimination, disclosure of information and confidentiality of records.
Generally speaking, it is not against the law to ask about prior Criminal Convictions.
Furthermore, a conviction is normally a Public Record unless the matter has otherwise been sealed or expunged.
SEE RELATED: North Carolina Public Record 2015
Have You Been Convicted of a Crime?
Please list any felony or misdemeanor criminal convictions, guilty pleas, deferred prosecutions, prayers for judgment continued, and pending charges. Please also list any past or present felony or misdemeanor criminal charges, regardless of the ultimate outcome of the criminal proceeding. Your listing should include DWI/DUI convictions, guilty pleas, etc., but exclude minor traffic violations. Provide date(s), court of jurisdiction, county/parish and state.
- Can a Potential Employer Ask Me That?
- Do I Have to Answer?
- Do I have to Tell the Truth?
- What is a Minor Traffic Violation?
- Is the language, “Regardless of the Ultimate Outcome of the Criminal Proceeding” proper, especially considering North Carolina’s Expunction Law(s)?
- What is a Prayer for Judgment Continued?
Title VII of the Civil Rights Act and Discrimination
Title VII of the Civil Rights Act of 1964 protects applicants and employees from discrimination in every aspect of employment, including screening practices and hiring. Because arrest and incarceration rates are much higher for African Americans and Latinos, an employer that adopts a general policy of excluding all applicants with a criminal record might be guilty of race discrimination.
The United States Equal Employment Opportunity Commission (EEOC) has issued guidance for employers, explaining how they can screen out applicants with criminal records that pose an unreasonable risk without discriminating.
Employers who conduct criminal background checks must consider:
- The type of offense; and,
- How serious it was; and,
- How long ago it was committed; and,
- The nature of the job (including how much supervision the employee will have and how much the employee will be required to interact with others) in deciding whether a particular offense is disqualifying.
The EEOC recommends employers give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.
Finally, in declining employment an Employer must avoid a “disparate impact” and if rejecting a candidate, the prior history must be “job related and consistent with business necessity.”
The Fair Credit Reporting Act FCRA
The Fair Credit Reporting Act (FCRA) addresses the problem of inaccurate records.
Reports created by criminal background or datum warehousing organizations may include:
- Incorrect Identity
- Reduced, Amended or Dismissed Charges
- Repeated or Duplicate Content
- Dismissal of Charges
- Entry of Deferred Disposition
- Improper Classification of Name, Type, Title and Number of Charges
The FCRA imposes responsibilities both on employers who request criminal background checks and on the firms that provide them. Employers must:
- Get the applicant’s written consent before requesting a check.
- Inform the applicant if the employer plans to screen him or her out based on the contents of the report. In this situation, the employer must also give the applicant a copy of the report.
- Notify the applicant once the employer makes a final decision not to consider the applicant based on the report.
The firms that provide background checks must take reasonable steps to make sure that the information they provide is accurate and up to date.
Testing the Water
Many people are aware of datum mining, identify theft and fraud regarding credit cards and personal information.
It is frankly not all that uncommon for someone in a bind to use another person’s name.
Prior to applying for new employment or a promotion, it makes sense to test the water and do some independent research.
While there is not a “credit report” for criminal offenses, there are some avenues to check one’s personal history via a Criminal Background Check.
There are also private agencies whom will provide the service at a cost.
SEE RELATED: Criminal Record Search Form 2015
One would be remiss in failing to note, State maintained records are entered by humans and therefore subject to human error.
Furthermore, private organizations may have reports from other states, jurisdictions, etc., that are incorrect. It makes sense to pull a Background Check BEFORE APPLYING.
RELATED RESOURCE: Answering Questions About Arrests 2005
Ten Commandments of a Job Recruiter
My buddy D.B. Robinson is a Tech-Recruiter based in Charlotte, North Carolina. He helps connect Employers with qualified Employees. Everyday he interviews people; sometimes he interviews ten or more candidates for a single job placement.
You might guess Mr. Robinson is pretty good at assessing people, their backgrounds and qualifications. My law practice focuses on Criminal Defense, Traffic and DWI / DUI. We do not handle Employment Law issues; but, we do see the consequences of criminal charges, citations, arrests and convictions.
As part of our daily practice we get asked, “How will this affect me?”
While I can share what takes place in Court and some information about the law of criminal records, I don’t interview people for a living. Mr. Robinson does and here is what he said when we talked in preparation for this post:
- Tell the truth, because it IS going to show up
- Be open, up-front early on
- Don’t get into the process and then be discovered a liar, deceptive or dishonest
- Understand liars can be blacklisted and companies keep track of applicants
- Absolutely know the disposition of any charge(s) in the past, including dismissals, pleas, amendments, etc.
- Be prepared to give a concise, accurate accounting of past troubles
- Have documentation and records immediately available
- Make certain records are complete and without errors
- Understand charges show up on a criminal background search, not just convictions
- Tell the truth, there is no hiding criminal records anymore
Bottom Line: Tell Me the Truth Up Front. If You Tell Me a Lie, it makes it much worse and really hard to find a job. – D.B. Robinson
Clear What Can Be Cleared
People often assume an Expunction will solve everything. Unfortunately, that is simply untrue.
There are important caveats to consider:
- An Expunction is not automatic or available in every circumstance; and,
- Timing is often important; and,
- Despite the law, some matters may still show up on a Criminal Background Check and are a potential source for problems; and,
- The Expunction process in North Carolina is relatively complicated, can be time-consuming and is subject to rules / conditions imposed by statute.
SEE RELATED: Summary of NC Expunctions 2015
Powers Landreth PLLC attorneys regularly prepare and submit Expunction paperwork.
The first step is to review the historical background and determine whether a client is eligible for relief.
When appropriate, we are available able to help clients in North Carolina.
We do not charge for the consultation and promise to keep everything confidential.
About Bill Powers
Bill was the 2017-2017 President of the North Carolina Advocates for Justice and a Board Certified Criminal Law Specialist by the National Board of Trial Advocacy / National Board of Legal Specialty Certification.
He regularly lectures on issues involving North Carolina Law, the Courts and Criminal Justice Public Policy. Bill is a member of the North Carolina Governor’s Impaired Driving Task Force and NCAJ Ebbie Award winner.
For speaking engagements and to consult with Bill, please contact him at: Bill@342help.com or 704-342-4357