Employers are becoming increasingly concerned about
knowing whether applicants have criminal records. Part of
this concern stems from large jury verdicts that have been
rendered against employers for negligently hiring people
with criminal histories who ultimately harm others. However,
the laws vary widely from state to state about which
criminal records an employer must or may access, what an
employer may ask a potential employee and what the job
applicant must reveal. If you have a criminal record and
seek a job, it is in your best interest to consult with an
attorney knowledgeable in criminal law and employment law so
that you go into the job search fully informed of your
rights and restrictions.
Conflicting Public Policies
On the one hand, the public wants to reintegrate into
society people with criminal histories, rehabilitated and
gainfully employed. A routine schedule and regular income
lessen the likelihood that a person will re-offend, but a
person with a criminal record faces prejudice in the job
application process. Still, hiring someone with a criminal
past can be compassionate and smart.
On the other hand, it is important to protect the public
from contact with prior offenders who may have propensities
to re-commit. For example, convicted sex offenders should
not work with children or vulnerable adults and people
convicted of serious property crimes should not have access
to homes or apartments, nor should they be responsible for
large amounts of cash. An employer has a legal duty to
exercise due diligence in the hiring process and that duty
is breached if it hires someone that it knows or should have
known was dangerous.
Discrimination
Courts have found that a policy of automatically denying
employment because of past criminal conviction can result in
discrimination against members of certain ethnic groups who
have historically been treated unfairly and
disproportionately by the criminal justice system. To avoid
such potential discrimination, an employer must examine
whether there is a sound business or legal reason not to
hire an individual with a criminal record, taking into
account the nature of the offense, whether it is job
related, when it occurred and what the person has done with
his or her life since the time of the conviction.
How Much to Reveal
Depending on the state, an applicant may not have to
reveal any or some types of potentially damaging
information, such as arrests not resulting in convictions or
convictions for minor matters. Some states have procedures
to judicially "erase" a criminal offense. A criminal-defense
attorney can help determine whether you may be eligible to
get a conviction sealed, expunged or otherwise legally
minimized.
Tips for Workplace Re-entry
Completing a prison term or paying a fine can be just
part of the price of a criminal conviction. It can also
impact post-conviction employment opportunities, but some
employers are willing to give those with criminal records
chances in appropriate circumstances. One job - any job -
can be the first step toward rebuilding a career and a life.
The Gilbert G. Garcia Law Firm can talk to you about various
options and offer advice on planning for the future.
