Today I was challenged by a prosecutor to show him one example of someone who was denied a job because of a public intoxication misdemeanor conviction. Since I have mostly beaten those charges when I am hired to defend them, I don’t know of any off hand. The other problems I would have in presenting such an example is client confidentiality and the fact that many people who are denied a particular job don’t know why they were denied that job. What they know well is how crummy it feels to have to mark “yes” in the box below that familiar job application question, “have you ever been convicted of a felony or misdemeanor?” knowing that doing so is going to make their already, perhaps, difficult task of getting that job even more difficult. Lying is not a good option as 90% of all employers are conducting background checks and lying on a job application is a legally valid reason to deny a job or, worse, to fire someone who has already been hired. It is beyond any serious dispute that those who have been convicted of crimes (aka “criminals”) are going to have a more difficult time getting ahead in life than those that haven’t. Employers can pick and choose among many qualified applicants for a given position and it is ludicrous to suggest that they won’t discriminate in favor of those with no criminal convictions.
Here are some things that everyone who applies for a job with one or more criminal convictions should know (and be advised of):
1. In California, most misdemeanor convictions and a lot of felony convictions can be expunged. And, no, that doesn’t mean that they can be “sealed” or otherwise “erased”. Most can’t. However, once you have completed probation or if a year has gone by since you convicted without being placed on probation, you can (and should) apply for the remedy. It’s pretty straightforward as legal pleadings go, but you should talk it over with a lawyer before deciding exactly how to proceed. All other states offer some similar form of relief but it may go by a different name. This remedy will enable you to answer “no” to the “have you ever” question as it relates to the conviction that was set aside as the result of the expungement. Moreover, most employers are not allowed to ask applicants to disclose whether they have had a conviction that was expunged. If they do so, they can be successfully claimed against before the EEOC or perhaps sued for employment discrimination.
2. Employers are not allowed to discriminate against an applicant just because he or she has one or more criminal convictions. The main reason for this is that this otherwise “neutral” condition disproportionately affects minorities since more minorities have criminal convictions.
3. An employer is obligated to provide you with a copy of your background check report that they used in deciding whether to hire you. Definitely ask them to do so upon being denied the job and you may as well ask why you are being denied if they don’t otherwise tell you. If you see something on your background check report that is not accurate, bring it to their attention and speak to a lawyer about how to fix it.
4. For a greater understanding of widespread employment discrimination against people with criminal convictions and what should be done about it, read National Employment Law Project’s fine article: “65 Million “Need Not Apply”
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