A 2017 survey commissioned by the National Association of Professional Background Screeners (NAPBS) reported that nearly all employers (96%) conduct a background check during the hiring process. For those with a criminal record, this is an intimidating statistic. It can also raise questions about how to accurately report your criminal history on a job application, and what employers are allowed to ask you regarding your criminal history.
Federal regulations allow employers to ask potential employees about prior convictions and/or arrests. Employers are also allowed to conduct background reports, the two most common types being a criminal history report and a credit report. However, the Fair Credit Reporting Act (FCRA), implemented in 1970 by the Federal Trade Commission, prohibits employers from conducting a background check without first obtaining the applicant’s written consent. Written consent is typically requested with a signature by the applicant at the end of an application. Employers must include verbiage that states by signing this document, you are consenting to a background and/or credit check. If the employer opts not to hire you based on something that was disclosed in the report, they must provide the applicant with a copy of the report and a document, often referred to as a “notice of rights,” that informs the applicant on how to contact the company that ran the report. This allows the applicant to challenge false or inaccurate information reported on either their criminal history and/or credit report.
While employers cannot discriminate based on color, race, national origin, sex, or religion as stated in Title VII of the 1964 Civil Rights Act, sometimes the results of a criminal background check lead to unlawful discrimination by the potential employer. To avoid discrimination, potential employers should consider the nature of the offense, how much time has elapsed since the offense, and if the offense directly correlates to the functions and tasks of the job for which the applicant has applied.
In response to federal guidelines, some states have adopted a “Ban the Box” law which allows employers to leave the criminal history and/or arrest question off the job application, giving them a chance to review an applicant’s experience and qualifications without the stigma of a conviction and/or arrest record. While employers can still run a background check with the “Ban the Box” law, it gives applicants a fair chance at the position by delaying the background check until further along in the hiring process. While this type of law has not been adopted statewide in Florida, several cities, including Daytona Beach, Jacksonville, Orlando, Clearwater, Gainesville, Miami, Tallahassee, St. Petersburg, Pompano Beach, and Tampa, have implemented similar policies for public sector jobs.
Now armed with an understanding of what employers can ask during the application process, it is important to also know what you are required to reveal about your criminal history. Generally speaking, honesty is the best policy. Your goal should not be to omit or avoid providing information. Employers will eventually discover your criminal history, and may view your omission as untrustworthy and subsequently use it as a reason not to hire you.
According to monster.com and snagajob.com, two of the leading job search websites in the nation, you should first know what is on your criminal history and confirm that it is accurate. If asked for your criminal history, it is important to understand what is being asked and only provide correct information. For example, if the question on the job application states, “Have you ever been convicted of a felony?” you should not list a misdemeanor offense or the last time you received a parking ticket.
If you do answer “yes” to a question about your criminal history, it is important to provide those details in a concise and factual manner (don’t offer excuses). It may also be beneficial to include what you have learned from your experience and how it has helped to develop you into a better job candidate. During a job interview, it is important to be upfront about your criminal history. A good opportunity to address your history is in one of the initial questions where an employer asks you to elaborate on your past experiences, or to explain a little more about yourself. It may be helpful to develop a quick (two minutes or less) explanation prior to the interview that is concise and focuses on your positive attributes. That said, your criminal history should be discussed during the interview and/or listed on an application, but should not be noted on your resume or cover letter.
The job application process can be time consuming and stressful, especially if you have a criminal history. The best way to navigate the job market successfully is to understand your rights as an applicant, and be prepared to disclose your criminal history along with how you have turned a negative experience into a positive one. If you have been convicted of a crime in the State of Florida and wish to pursue a seal and expunge, contact an experienced criminal defense attorney now.
Article written by Melissa Abbruzzese
Attorney Don Pumphrey, Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney. Don has achieved over 100 not guilty verdicts at trial and over 2,000 dismissals.
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