Can You Charge Finance Fees On Public Schools In Kansas Is Your Criminal History Thwarting Your Job Search? How To Improve Your Employment Prospects

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Is Your Criminal History Thwarting Your Job Search? How To Improve Your Employment Prospects

A few months ago I had a conversation with a medical resident 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 However, less than 90 days before the fellowship was to begin, the hospital “rescinded” the contract citing his ten-year misdemeanor theft conviction. The hospital took this action despite the fact that (1) the resident had truthfully completed her employment application accurately answering, among other things, that she had no felony convictions; and (2) the misdemeanor conviction has no bearing on his fellowship duties as a physician.

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

Beyond the jobs of a random doctor and banker, these anecdotal accounts reflect a persistent and pervasive social problem: How can ex-offenders overcome their criminal records in an effort to obtain and maintain employment? Approximately 600,000 men and women are released from incarceration annually. In addition, each year millions of people accused of criminal offenses have their cases disposed of without the imposition of prison terms (eg, dismissed charges, 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 huge obstacle to your efforts to go to work.

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

As a result, if a company refuses to hire an applicant or decides to fire a worker because of their criminal record, the employer is likely to have 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 is not objectively relevant to the underlying duties. The employer retains the right to exercise this labor prerogative at will in this sense.

Fortunately, a significant minority of states have taken legislative action to ameliorate this harsh reality for workers with criminal records. Fourteen states prohibit discrimination against some form of discrimination against ex-offenders 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, e.g., San Francisco, CA, have restricted the ability of employers to rely on criminal record 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 without a “reasonable” or “direct” relationship between that record and the proposed employment. For example, a physician resident in Pennsylvania may have a legally cognizable means of challenging a denial of a hospital grant based on an unrelated ten-year theft conviction. Similarly, under the state’s anti-discrimination law, a New York banker could successfully challenge a discharge based on an eighteen-year-old marijuana charge.

In contrast, however, a would-be banker in any of the five aforementioned states would likely have no recourse if he had a felony embezzlement conviction in light of the alleged causal relationship between the nature of the conviction and the defendant’s duties. position It should also be emphasized again that this “relationship test” only matters in the aforementioned states that have prohibited or restricted discrimination against ex-offenders in private and/or public employment. As a result, regardless of the nature of his criminal record, a similarly situated job applicant seeking employment in most states would have no potential means of direct legal redress because these states do not prohibit this form of discrimination in the United States. the public or private sector.

If you find yourself with a criminal record and are seeking employment in one of these states without a prohibition against discrimination, you may still have other options available to you to ameliorate the potentially adverse impact of your record on your job search. For example, individuals 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 agree to a “pretrial probation” provision. or “PBJ” as opposed to a non-custodial sentence. . In essence, a PBJ or “stet” disposition puts the underlying criminal matter on hold for one year. If during that one-year period the defendant does not commit another crime, the underlying charge will be dismissed. (However, if the defendant commits another crime during this probation period, the prosecutor can charge him with this second crime and seek a conviction for the first crime.) The main advantage of a PBJ is that the defendant avoids having a conviction appear on his or her your registration When conducting employment background checks, many companies only focus on convictions. The absence of a conviction can only improve an individual’s prospects for securing potential employment.

If (1) an individual can resolve a criminal charge with a dismissal, a nolle prosequi or “nol pros” motion (ie, a motion by the state’s attorney declining to prosecute the charge), a PBJ or stet, or a similar non-conviction . provision, or (2) an individual is convicted only of a specified nuisance offense (eg, disturbing the peace) or of a single nonviolent criminal act, then he or she may subsequently petition the court to have the criminal record “expunged “. ” If a worker with such a criminal record can successfully have his or her record expunged, then the state will remove reference to such criminal activity from court, police, and motor vehicle records and files. Additionally, the effect of the expungement order allows the affected “truly” deny the existence of the charges or convictions described above when looking for a possible job.

If you have a more substantial criminal record (for example, a “serious” felony conviction), you can explore other alternatives to expunging or minimizing the effect of your record on your job search. Generally, if an ex-offender has completed his sentence, stayed out of trouble for the required period of time, and led a productive life in the meantime, then he can apply for a pardon from the state clemency board or similar state agency. . With a pardon, the ex-offender can then request that their record be expunged. (In some jurisdictions, the underlying records are automatically expunged upon the 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 their completion of the sentence and their years as a respectful and productive citizen. Once the conviction is overturned, the ex-offender can move to have their record expunged.

If an individual with a felony record cannot successfully apply for a pardon or vacated conviction, they may want to explore whether they can obtain a “certificate of relief from disability” 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 offense or offenses specified therein.” See NY Correct. Law § 753. An employer or licensing agency of the issuing state is then required by law to “consider” the applicant’s certificate in making a hiring or licensing decision. See NY Correct. Law § 753(2). Accordingly, such a certificate can significantly increase an objectively rehabilitated ex-offender’s chances of obtaining employment and/or obtaining a professional license (eg, a barber’s license).

In short, if you have a criminal record of any kind, then you will want to explore any and all avenues to remove the existence of your record or minimize the record’s impact on your employment options. Those with misdemeanor “juvenile indiscretion” charges or convictions on their record should find the process of cleaning their record relatively simple, if not easy. For those of you with more serious criminal records, this path may be more arduous, but potentially doable. Given that many employers can and do indiscriminately discriminate against ex-offenders regardless of their underlying criminal disposition and manifest rehabilitation, these post-sentence steps can only help improve their employment prospects.

Similarly, if you have encountered other difficulties in the workplace, you can also effectively seek your remedy. You don’t have to endure abuse in silence. You have rights!

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