Criminal records background checks in particular are very difficult on people who have been unemployed and who have a criminal conviction history. It is important to understand that having an arrest history and a criminal conviction record are two different things. Anyone can be arrested and not have a conviction while criminal conviction means being guilty of a crime. When an employer does a background check an arrest history is not considered and a job seeker with a criminal conviction does not mean they will never get a job.
In times when companies are cutting costs, criminal record background checks continue to be performed and are expensive for a company to do. Contrary to popular belief there is no national database of criminal conviction records. While the FBI maintains the majority of conviction records, access to the FBI data base is limited to government and government sub-contractors. In the United States, employers are tasked with the responsibility of looking for criminal background information from over 10,000 different courthouse records.
Yet employers continue to incur the cost of a criminal background check and time. So why do companies do criminal record background checks?
A company has a legal obligation called “due diligence” to perform a background check based on the job that is being offered. For most employers, due diligence is a moving target that is determined by a jury based on evidence in the trial concerning injury, foreseeable risk and duty of care. If the job is handling cash, personal customer information such as a credit card or managing a personal account the hiring company must show they did what was reasonable and expected to protect the customer from exposure to someone who might steal, assault a customer or abuse information.
Aside from a company’s legal obligation to do a background check, a company has a moral obligation to do a complete criminal background check. Ask yourself how comfortable are you giving your credit card or other personal information to someone who has a conviction for theft, fraud or identity theft? Even more concerning, with the steady rise in violence in the workplace, how would you feel if the person working beside you has a long history of assault and battery or sexual assault or had a manslaughter conviction?
The fact is many companies require candidates for employment to complete a criminal background check. Depending on the company, some checks are very in-depth while other criminal background checks are perfunctory. In any case, criminal background checks make good business sense with increasing incidences of misrepresentation, workplace violence, employee theft, shrinkage and fraud.
In order for a criminal record check to be done a employer must get your written permission. Because there are so many jurisdiction companies that do background checks often use “Third-party” agencies that provide credit and criminal records information. These Third-party agencies are regulated by the Fair Credit Report Agency (FCRA). There are many credit reporting agencies. Three largest reporting agencies are TransUnion, Experian and Equifax. Not all companies use Third-party agencies. Companies can directly contact law enforcement agencies or the courts to find out if there is a record of convictions.
In most cases, companies that ask for a criminal record background check will ask on the employment application about a conviction record. Being honest is critical when completing an employment application. It is the responsibility of the applicant to know if they have a criminal record or not. This includes knowing if the conviction is a felony or misdemeanor conviction, the details of the conviction and final disposition.
Companies do not tolerate falsification on the employment application. Therefore, if an applicant answers incorrectly regarding a criminal conviction, the applicant owns the consequences of that falsification which is usually immediate termination. The excuse that the “attorney” said there would not be a record, will not undo the falsification.
Companies expect the applicant to know the correct answer on the employment application. If an applicant is not sure of their criminal record that applicant should contact the Clerk of Court in that jurisdiction and request court copies. Keep these records and have them ready should an employer ask questions.
It should also be noted that it takes time to do a criminal background check and given the complexity of conducting a criminal records check, should that applicant begin working for the company and the company later finds that the applicant falsified the application it will result in termination. Even after many years of good employment, termination will follow, upon discovery that the application was falsified. There is no time limit on application falsification.
It is critical to always read the employment application carefully. If the employment application asks about a felony conviction and the applicant has a felony conviction then answer honestly. Having a conviction does not automatically disqualify an applicant but falsifying the employment application always disqualifies an applicant. When a conviction is disclosed by an applicant, the U.S. Equal Employment Opportunity Commission (EEOC) requires that an employer take into account the nature and gravity of the offense, nature of the job, and time elapsed. This is the time to produce the Clerk of Court records to show the employer. It is important to note that employers should not be asking for arrest records on an application.
Always read the employment application carefully. If the employment application asks if the applicant has any conviction in the last seven years answer honestly and disclose all convictions within the last seven years. Should the employment application ask if the applicant has EVER had a conviction, an honest answer is expected regarding any and all convictions ever. Listing just one conviction when the applicant knows there are several convictions means the applicant did not fully disclose and would result in disqualification from employment. Or if the applicant generalized that so much time had gone by the conviction would not show up. The fact is a criminal conviction remains on a persons record for life.
Many companies understand that no one is perfect. If there is conviction that happened in the past, state it if asked on the employment application and discuss it during the job interview. This is the applicant’s opportunity to explain what happened and get any potential issues out on the table. Few jobs and employers require an absolutely clean record to be hired.
If an applicant has just gotten a felony conviction for driving with a suspended license will likely disqualify that applicant from getting a job working as a driver for a company. But a conviction for letting your dog run loose will most likely not impact a driving job, let the employer know about the conviction and let the employer make that decision. Most employers can and do consider how long ago a problem occurred and whether the problem has any bearing on the position being considered.
Talking about a past conviction may be difficult, but when it comes to getting a job, always tell the truth.
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