A few months ago I had a conversation with a resident physician who had signed a contract with a hospital in Pennsylvania to begin a one-year fellowship in the fall. However, less than 90 days before the fellowship was to begin, the hospital “revoked” the contract citing his conviction for theft under ten years. The hospital took this action despite the fact that (1) the resident had truthfully completed her employment 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 promoted at the same bank in Alaska. She had worked for the bank for years in California, she had passed her previous background check and had been bailed out. However, within weeks of her starting her new job in Alaska, the bank “discovered” that she had a misdemeanor marijuana charge of eighteen, dismissed in Delaware. The bank proceeded to fire her from her for this dismissed charge.
Beyond the jobs of a random doctor and banker, these anecdotal accounts reflect a persistent and pervasive societal problem: How can ex-felons overcome their criminal records in an effort to secure and keep employment? Approximately 600,000 men and women are released from prison each year. 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, contribute positively to American society, and not reoffend, they need to find and keep 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 the enlightenment of their potential employers. Most workers in the United States (with the notable exception of the great state of Montana) are hired on an “employment at will” basis. Under the employment-at-will doctrine, a company may decide not to hire a prospective employee at-will for any reason, as long as the reason does not violate applicable law (eg, an anti-discrimination statute) or contract (eg, eg, a collective bargaining agreement).
As a consequence, if a company refuses to hire an applicant or decides to fire a worker because of their criminal record, the employer likely has the legal right to do so. In most jurisdictions, it does not matter whether the underlying criminal offense was minor, did not result in a conviction, and/or has no factual relevance to the underlying job functions. The employer retains the right to exercise this prerogative of employment at will in this regard.
Fortunately, a significant minority of states have taken legislative steps to ameliorate 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-felons 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 criminal records covered by one of these anti-discrimination laws, prospective employers cannot legally deny them employment based on that record in the absence of a “reasonable” or “direct” relationship between that record and the proposed job. For example, a physician resident in Pennsylvania may have a legally cognizable means to challenge the denial of a hospital fellowship based on an unrelated ten-year misdemeanor theft conviction. Similarly, under state anti-discrimination law, a banker in New York could successfully challenge a discharge based on an eighteen-year marijuana charge.
In contrast, however, a prospective banker in any of the five aforementioned states would likely have no 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. position. It’s also worth reemphasizing 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 their criminal history, a similarly situated job applicant seeking work in most states would not have any potential means of direct legal remedy because these states do not prohibit this form of discrimination in the industry. public or private.
If you have a criminal record and are seeking work in one of these states without a discrimination prohibition, 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 (eg, disorderly conduct, fare hopping) and who have relatively clean criminal records may be able to convince a judge to accept a provision of “pretrial probation” or “PBJ” in lieu of a sentence without jail time. . In essence, a PBJ or “stet” provision places 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 can charge him with this second crime and seek a conviction for the first crime.) The main advantage with a PBJ is that the defendant avoids a conviction appearing on his or her record. When conducting employment background investigations, many companies only focus on beliefs. The absence of a conviction can only improve an individual’s prospects for possible employment.
If (1) a person can settle a criminal charge with a dismissal, a nolle prosequi or “nol pros” motion (i.e., a motion from the state’s attorney refusing to prosecute the charge), a PBJ or stet, or a does not convict a similar provision, or (2) a person is found guilty only of a specific disorderly conduct offense (eg, disorderly conduct) or a single nonviolent criminal act, then he or she may request to the court to expunge the criminal record. “If a worker with this type of criminal history can successfully expunge their record, then the state will remove reference to this criminal activity from court, police, and motor vehicle records and files. Additionally, the effect of the expungement order allows that the affected person “truthfully” deny 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 erase or minimize the effect of your record on your job search. Generally, if an ex-offender has served his 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 clemency board or state clemency board for clemency. a similar state agency. . With a pardon, the ex-offender can request that her criminal record be expunged. (In some jurisdictions, the underlying records are automatically expunged with the issuance of the pardon.)
Also, similar to the process of obtaining clemencies, some states allow ex-offenders to petition the sentencing court to “vacate” 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 that his criminal record be expunged.
If a person with a criminal record is unable to successfully apply for a pardon or vacated conviction, they may want to explore whether they can obtain a “certificate of relief from disabilities” or “certificate of good conduct.” Essentially, executive branch agencies in certain states (eg, New York, Illinois) issue such certificates to qualified ex-offenders in order to “create a presumption of rehabilitation with respect to the offense(s) specified therein.” See NY Correct. Law § 753. An employer or licensing agency in the issuing state is required by law to “consider” the applicant’s certificate when making a hiring or licensing decision. See NY Correct. Law § 753(2). Accordingly, 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 from your record or minimize the record’s impact on your employment options. Those with minor “juvenile indiscretion” charges for misdemeanors 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 your overt 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 seek a solution. You don’t have to endure abuse in silence. You have rights!
