Is your criminal history frustrating your job search? How to improve your job prospects

A few months ago I had a conversation with a resident doctor who had signed a contract with a hospital in Pennsylvania to start a one-year fellowship in the fall. However, less than 90 days before the fellowship began, the hospital “revoked” the contract citing his ten-year minor theft conviction. The hospital took this action despite the fact that (1) the resident had truthfully completed her job application by, among other things, correctly answering that she had no felony convictions; and (2) the misdemeanor conviction has nothing to do with her fellowship duties as a physician.

Last month I spoke with a banker who used to work for a national bank in California and got a promotion at the same bank in Alaska. She had worked for the bank for years in California, she had passed her previous criminal background check and had been posted bail. However, within weeks of her starting her new job in Alaska, the bank “discovered” that she had an eighteen-year-old misdemeanor marijuana charge dismissed in Delaware. The bank proceeded to fire her for this dismissed charge.

Beyond the jobs of a random doctor and banker, these anecdotal accounts reflect a pervasive and persistent societal problem: How can ex-felons overcome their criminal records in an effort to secure and maintain employment? Approximately 600,000 men and women are released from prison annually. In addition, millions of people charged with criminal offenses are resolved each year without the imposition of jail time (eg, charges dismissed, acquittals, probation). In order for these adults to care for themselves and their families, to contribute positively to American society and not reoffend, they need to find and maintain gainful employment. Unfortunately, your criminal record can be a major obstacle to your efforts to go to work.

For the most part, these people have to rely on enlightenment from their prospective employers. Most workers in the United States (with the notable exception of the large state of Montana) are hired on an “employment at will” basis. Under the at-will employment doctrine, a business may decide not to hire a prospective at-will employee for any reason, as long as the reason does not violate an applicable law (e.g., anti-discrimination statute) or contract (e.g. (eg, a collective bargaining agreement).

As a consequence, if a business refuses to hire an applicant or decides to fire a worker because of their criminal record, the employer likely has a legal right to do so. In most jurisdictions, it does not matter if the underlying criminal offense was minor, did not result in a conviction, and/or has no objective relevance to the underlying job functions. The employer retains the right to exercise this employment privilege 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 any form of ex-offender discrimination 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. (In addition, 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 may not legally deny them employment based on that record in the absence of a “reasonable” or “direct” relationship between that record and the proposed employment. For example, a Pennsylvania resident physician may have a legally recognizable means to challenge a denial of a hospital fellowship based on a ten-year unrelated petty theft conviction. Similarly, under the state’s anti-discrimination law, a banker in New York could successfully contest a discharge based on an eighteen-year-old marijuana charge.

However, in contrast, a would-be banker in any of the five aforementioned states would likely not have a remedy if he had an embezzlement conviction in light of the alleged causal relationship between the nature of the conviction and the duties of the wanted party. position. It is also worth re-emphasizing that this “relationship test” matters only in the aforementioned states that have prohibited or restricted discrimination against ex-offenders in public and/or private employment. Consequently, regardless of the nature of his or her criminal history, a similarly situated job applicant seeking work in most states would have no potential means of direct legal redress because these states do not prohibit this form of industry discrimination. public or private.

If you have a criminal record and are seeking work in one of these states without a prohibition on discrimination, you may have other options available to you to ameliorate the potentially adverse impact of your record on your job search. For example, people charged with less serious misdemeanors (e.g., disorderly conduct, fare jumping) and who have a relatively clean criminal record may be able to convince the judge to accept a “pretrial probation” provision or “PBJ” instead of a sentence without jail time. . In essence, a PBJ or “stet” provision puts the underlying criminal matter on hold for one year. If during that one-year period the defendant does not commit another crime, then the underlying charge is dismissed. (However, if the defendant commits another crime during this probationary period, the prosecutor may charge him with this second crime and seek a conviction for the first.) The main advantage with a PBJ is that the defendant avoids having a conviction appear on his or her record. When conducting employment background checks, many companies only focus on beliefs. The absence of a conviction can only improve an individual’s prospects for potential employment.

If (1) a person can resolve a criminal charge with a dismissal, a nolle prosequi or “nol pros” motion (i.e., a state attorney’s motion refusing to prosecute the charge), a PBJ or stet, or a no sentence similar provision, or (2) a person is convicted solely of a specific disorderly persons offense (e.g., disorderly persons) or a single nonviolent criminal act, then he or she may apply to the court to expunge criminal records. “If a worker with this type of criminal record is able to successfully expunge their record, then the state will remove reference to this criminal activity from court, police, and motor vehicle records and files. In addition, the effect of the expungement order allows that the person affected “truly” denies the existence of the charges or convictions described above when looking for a possible job.

If you have a more substantial criminal history (eg, a “serious” felony conviction), then you may want to explore other alternatives in an effort to clear or minimize the effect of your record on your job search. Generally, if an ex-offender has served his or her sentence, stayed out of trouble for the required period of time, and has led a productive life in the meantime, then he or she can apply to the state board of clemency or to a state board for clemency. an analogous state agency. . With a pardon, the former offender can request that her criminal record be expunged. (In some jurisdictions, the underlying records are automatically deleted upon issuance of the pardon.)

Also, similar to the process of obtaining pardons, some states allow ex-offenders to petition the sentencing court to “set aside” their convictions based on the completion of the sentence and their years as a law-abiding and productive citizen. Once the conviction is vacated, the ex-offender can request to have their criminal record expunged.

If a person with a criminal record is unable to successfully apply for a pardon or a vacated conviction, they may want to explore whether they can obtain 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 to “create a presumption of rehabilitation with respect to the crime or crimes specified therein.” See NY Correct. Law § 753. An employer or licensing agency in the issuing state is required by law to “take into account” the applicant’s certification 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, you’ll want to explore any and all avenues to remove the existence of your record or minimize the impact of the record on your employment options. Those with misdemeanor “juvenile indiscretion” charges or convictions on their record should find the process of clearing their record relatively straightforward, if not easy. For those of you with more serious criminal histories, this path may be more arduous, but potentially doable. Considering that many employers can and do engage in unvarnished discrimination against ex-offenders, regardless of the underlying disposition of the offense and their manifest rehabilitation, these post-trial steps can only help improve your employment prospects.

Similarly, if you have encountered other difficulties in the workplace, you can also look for a solution. You don’t have to endure abuse in silence. You have rights!