About that “new” EEOC policy about candidate’s criminal record in pre-employment screening. In a sentence, it means:
File a charge of discrimination if a candidate isn’t hired (or is fired) for having committed some non-job-related crime.
If you’re doing contingency-fee search, your existing policy in a sentence is:
Race to place.
- If it’s not job-related, don’t consider it.
- If it has no bearing on the job duties (like a conviction for embezzlement of a bank veep candidate), don’t disclose it.
- No third-party criminal background checks.
But how about a new policy for you too? How about one to help criminally-challenged candidates resume productive, placement-fee-generating careers?
Criminally-challenged candidates usually think there’s nothing that can be done about bad reps except to conceal them. But with a little help from you, they can be officially sealed forever. There’s no higher calling for a professional recruiter. No more fulfilling reward. And no more grateful a candidate.
He’ll interview better, too. Paul Evans and Ferando Bartolome noted why in their Harvard Business Review article “Must Success Cost So Much?”
Talk with someone who has a clear sense of professional identity, and you feel this in his vocal and confident description of himself. His self-confidence comes across as authentic, not simply as a mask. He can describe his strengths, and also his weaknesses. But these weaknesses do not seem to be strong limitations on his career.
Here’s how to implement this policy:
Ask The Candidate
Most recruiters never even mention the subject of a criminal record. This is doing a disservice to employers, candidates and themselves. The few who mention it just say something like, “This position requires a bond. Is there any reason you won’t qualify?” The answer is always the same here, too. People with criminal skeletons are used to keeping the closet locked.
The difficulty of obtaining this is even greater because it’s an omission. Paul Ekman noted why in his book, Telling Lies:
Not everyone considers concealment to be lying; some people reserve that word only for the bolder act of falsification …
When there is a choice about how to lie, liars usually prefer concealing to falsifying. There are many advantages. For one thing, concealing usually is easier than falsifying. Nothing has to be made up…
Concealment may also be preferred because it seems less reprehensible than falsifying. It is passive, not active.
In some ways, we’re glad the subject isn’t mentioned. The constitutional right to privacy, and statutory equal employment opportunity laws have created a web of unclear, inconsistent federal, state and local rulings that attempt to protect candidates. There’s merit to this. If someone’s paid their debt to society or has been stripped of his stripes, the record shouldn’t haunt him forever. But what about the employer’s right to know? Will the past predict his future job performance? Can he be trusted? Is he dangerous? What is the employer’s duty to protect employees or the public?
Fortunately, you don’t need to deal with these philosophical issues — only the legal ones. Just be certain you make your role clear to the candidate.
- It’s absolutely necessary that he confide in you about everything in his background that will legally cost him his job.
- You’re not asking on behalf of any particular employer, but because you want to know anything that could affect your integrity in presenting him.
- Some of the employers you work with run security checks that take time. Therefore he might be hired and then terminated for concealing the information.
- All discussions will be held in the strictest confidence.
- He might be able to have the records sealed.
Then (after you’ve checked with your state labor or equal employment department for legality) ask the candidate these kinds of questions:
- Have you ever been convicted of a crime?
- Have you failed to perform any obligation imposed on you by a court order in connection with conviction of a felony?
- Have you ever had a professional license denied, suspended or revoked?
- Have you ever been reprimanded, censured or disciplined by any professional licensing authority?
- Have you ever been denied membership, suspended or expelled from any professional association?
- Have you ever been reprimanded, censured or disciplined by any professional association?
- Have you even been refused a bond in connection with your job?
- Has anyone ever sought to recover against a bond for your conduct on the job?
- Have you ever been suspended, expelled or disciplined by any educational institution?
- Have the records of any of these items been sealed or expunged?
It is necessary for your protection that you know what can’t be legally asked in a pre-employment inquiry. Therefore, checking with your state labor or equal employment department is essential before asking these or any other questions regarding criminal activity.
Since the procedure is different in every jurisdiction, the following general information is provided solely for you. It should give you the typical ways records are sealed, but is not intended for candidates. Citations to federal law are provided where applicable.
1. If The Record Is A Conviction For Possession Of Drugs
Drug possession crimes are 10 times more common than any others you’ll hear about. They’re also treated differently than other crimes by federal and state authorities. That’s why we’ve treated them separately. Driving under the influence (DUI) cases are still generally treated as traffic violations, so have little impact on eligibility for employment.
If your candidate was at least 21 years old and was charged under federal law with possession of certain controlled substances (21 USC 812), his case may be dismissed and the records sealed. To qualify, he must show:
- No prior conviction of a drug-related crime.
- No similar dismissal of a drug-related crime.
- That he pled or was found guilty of the possession of controlled substances.
Federal law allows the judge to give a sentence that can prevent “guilty” from ever appearing on the court record. In these cases, the candidate was placed on probation for a specified period (usually one year). If no condition of probation was violated, the court can discharge him and dismiss the charges.
Once the order is entered, the court records are sealed (placed in a file or envelope, then sealed) and archived by the court clerk. The candidate’s name is removed from all indexes and docket lists. Only the U. S. Department of Justice keeps a non-public record of the dismissal, since a candidate cannot have it granted again.
This procedure is extremely significant, since the candidate can honestly answer “No” when an employer asks, “Have you ever been convicted of a crime?” (Of course this assumes there’s no other conviction for anything.)
In addition, if he’s ever convicted of possession again, he will be sentenced as though he was a first offender. But after that, sealing the record under federal law is unlikely. He’ll need the best lawyer he can find to petition the court. Fortunately this is one of the few areas where public interest legal clinics excel, so there may be almost no cost involved.
2. Expungement Is Available for Juveniles
A candidate charged with possession when he was under 21 has an additional remedy. It’s called expungement (literally “destruction”). After 10 years, the sealed filed is physically destroyed — forever. Even the Department of Justice doesn’t retain the records.
In The Criminal Records Book, attorney Warren Siegel offers the best advice for your candidates:
Getting your criminal record destroyed is the most complete form of “record cleaning” available . . . [But] regardless of what’s supposed to happen, sometimes agencies don’t take papers out of their filing cabinets or entries out of their computers when they’re supposed to. After several months have passed, we recommend you obtain copies of your criminal records . . . to see whether the agencies have complied. If they have not, point this out to them and hopefully you’ll get some action. All agencies have procedures to respond to requests for correction of mistakes in their records.
States vary widely in their laws and procedures for prosecuting drug-related crimes. However, most have downgraded or eliminated the penalties for the possession or use of small quantities of marijuana (usually under one ounce). Punishment, if one is even assessed, is usually payment of a fine, and informal (unsupervised) probation. Then there’s automatic destruction of the record within a short period of time (usually two years).
Some statutes even provide that after satisfactory probation:
- A jobseeker can answer “No” to questions about a prior criminal record.
- A professional license cannot be denied based upon the conviction for limited marijuana possession.
3. If the Conviction is for Any Other Crime
When federal law is involved, the sealing remedies vary depending on severity of the crime, type of conviction, sentence imposed, compliance with probation, and other variables. There are exceptions and limitations throughout the statutes, so a criminal attorney should be consulted.
However, state law is probably involved. All states provide a procedure for petitioning a court for sealing. Whether the petition will be granted depends on the answers to four questions you should now ask your candidate. Here they are, along with answers that usually apply:
1. Were you an adult when the crime was committed?
As noted earlier, minors receive preferential treatment. However, this doesn’t mean sealing happens automatically. The best thing for the candidate to do is request the record (“rap sheet”) from the appropriate department (county clerk, etc.). If a conviction is still “of record,” you should contact the probation department. It will often prepare the necessary papers, petition the court, and represent him if necessary – at taxpayer expense.
This should only be asked if your state (really the employer’s state) allows non-felony pre-employment inquiries.
2. Was the conviction for a felony, misdemeanor, or infraction?
We’re not talking about the crime charged here. A plea bargain (typically reduction of the felony charge in exchange for a guilty plea to a related misdemeanor) is the same as the misdemeanor charge and conviction.
Many state labor or equal employment laws prohibit employers from asking about convictions for misdemeanors. It just doesn’t work though. Interstate employers use forms that ask about them. Others use outdated forms. Still others don’t care about the law. Ditto for arrest information.
Even those sophisticated, law-abiding employers that comply pick up arrests, charges and sentences for everything from smoking in the boy’s room to bouncing a check at the market. Being sophisticated, they just find another reason not to hire (or to fire if they already did).
But the law’s the law, so you’d better not ask if an employer can’t. Too bad — so many candidates in these states don’t realize they’re walking around with an invisible ball and chain.
3. Were you placed on probation?
In our overworked criminal justice system, many candidates don’t even realize they were placed on probation! They’re placed on unsupervised, summary probation, left on their own recognizance or just OR. The judges recite the sentences like auctioneers. The convicts pay the fine, and rush out to find a parking ticket waiting on the windshield.
This becomes very significant because our overworked criminal justice system does almost nothing automatically. That probation sentence can be like an invisible ball and chain too. Invisible only to the candidate.
4. Were you placed on parole?
There’s a big difference between “parole” and “probation.” Candidates don’t confuse these, but they don’t necessarily tell all either. If you confuse them, you might be wasting everyone’s time.
Parole occurs after someone is imprisoned. There’s always a parole officer, and it’s always a supervised, easily-checked occurrence. It’s always after a conviction, and usually for a felony. So you can ask about when it began, if there were any parole violations, if the terms and conditions of parole were met, whether the candidate must report to his parole officer, when, etc.
Depending on these answers, the candidate must either:
a. Wait until he’s off the hook, or
b. Proceed directly to the parole board for help in sealing the record.
4. If the Candidate’s Professional License Has Been Denied, Suspended or Revoked
Article Continues Below
Applications for almost all state licenses carefully ask about anything that could even remotely affect a candidate’s character. Unlike pre-employment inquiries, the granting of a professional license is directly for the protection of the public. Therefore, privileges from disclosure are virtually nonexistent. You can ask about these items freely, and should.
Let’s look at the three areas separately.
1. The denial of a license.
While this doesn’t usually haunt the candidate as a public record, the question often results in a “candid candidate.” That’s because somewhere around 30% of the people who say they have a professional designation in industrial occupations (engineering, physics, architecture, etc.) don’t.
Professional licenses are as easy to check as dialing a phone number or going online. So even though an employer might not find out about a denial, there’s an intentional misrepresentation – fraud – which is “just cause” to terminate any professional employee for sure.
Of course, asking the question may indirectly surface criminal skeletons jangling around in the background too.
2. License suspension.
Unlike denial, suspension is usually a matter of public record. That’s because it usually signals a temporary stripping until there’s a hearing, restitution, or compliance with certain conditions.
If reinstatement occurs, statutes vary widely in terms of the extent and period of disclosure. Few go beyond 10 years if there are no further incidents.
One thing’s for sure; your candidate will know all about the way it works. Find out all you can. Placing him is difficult enough without playing games.
You can intervene as much as you like, though. It’s not a “pre-employment inquiry.” It’s a presentation one! And your primary professional prerogative.
3. License revocation
License revocations rarely occur without a hearing, right of appeal, and entry of a final order. They’re not only easily accessible by phone or online, but often receive dishonorable mention in official publications.
Records of license revocations are particularly difficult to seal or otherwise remove. That’s because:
- Licensing agencies often have their budgets tied to statistics. The more revocations, the more they get.
- Protection of the public outweighs the private rights involved.
- Those with an active license want to keep those without it from operating.
This same basic analysis applies to certification by public or private entities.
5. If the Candidate’s Professional Membership Has Been Denied, Suspended or Revoked
The courts have generally considered that membership in a professional (trade) association is not an enforceable right unless it is a prerequisite to actually working in the field. Then it becomes virtually the same as a license.
The U. S. Supreme Court ruled in Gibson v. Berryhill (411 US 546, 93 S.Ct. 1689, 36 L.Ed.2d 488) that the Alabama Board of Optometry could not discipline a licensee because its members had a financial interest in preventing him from practicing. It was deemed to be a restraint of trade and violative of due process.
Most trade associations don’t hold the keys to the office though. So the reported cases usually involve alleged violation of civil or property rights in conjunction with entry into the hallowed roster. Suspension or revocation usually translates into some breach of contract or conspiracy allegations.
The cases vary so widely that no all-purpose legal rules can be applied. But one practical rule you should know is: Volunteers don’t want litigation. Conventions, members and certification, yes. Litigation, no. So there’s much that a lawyer can do to set the record straight (or eliminate it).
Your New Policy
As you can see, it’s much easier for a candidate to get into trouble than to get out of it. Or admit he was in it. But once he does, you can really help. The irony is that candidates who conceal crimes are often the most honorable. Robert Liston told why in When Reason Fails:
[T]he more virtuous the person, the greater his capacity for guilt. A person with a strong conscience may feel guilty over some act such as lying . . . that another person would not give a passing thought to.
So your “new” policy should be:
Place as many candidates as possible and help them clear their records.
Now you can do it. Best wishes for fulfilling five-figure fees!
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