A few months ago I had a discussion with a resident physician who had executed a contract with a hospital in Pennsylvania to start a one-year fellowship in the fall. However, less than 90 days before she was set to commence the fellowship, the hospital “revoked” the contract citing her ten-year-old misdemeanor theft conviction. The hospital took this action despite the fact (1) the resident had truthfully completed her employment application by, inter alia, accurately answering she did not have any felony convictions; and (2) the misdemeanor conviction does not have any bearing on her fellowship duties as a physician.
Last month I spoke with a banker who used to work for a national bank in California and took a promotion with the same bank in Alaska. She had worked for the bank for years in California, had passed its earlier criminal background check, and had been bonded. However, within weeks of her start at her new job in Alaska, the bank “discovered” she had an eighteen-year-old, dismissed misdemeanor marijuana charge from Delaware. The bank proceeded to terminate her because of this dismissed charge.
Beyond the travails of a random physician and banker, these anecdotal accounts reflect a persistent, widespread societal problem: How can ex-offenders overcome their criminal histories in an effort to secure and keep employment? Approximately 600,000 men and women are released from incarceration annually. Additionally, every year millions of individuals charged with criminal offenses have their cases disposed of without the imposition of jail time (e.g., dismissed charges; acquittals; probation). In order for these adults to care for themselves and their families, to contribute positively to American society, and not to re-offend, they need to find and keep gainful employment. Unfortunately, their criminal histories can constitute a major obstacle to their efforts to go to work.
For the most part, these individuals have to depend on the enlightenment of their prospective employers. The majority of 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 can decide not to hire a potential at-will employee for any reason as long as the said reason does not violate applicable law (e.g., anti-discrimination statute) or contract (e.g., collective bargaining agreement).
As a consequence, if a company declines to hire an applicant or decides to fire a worker because of his or her criminal history, 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 objective relevance to the underlying job duties. The employer retains the right to exercise this employment-at-will prerogative in this regard.
Fortunately, a significant minority of the states have taken legislative action to ameliorate this harsh reality for workers with criminal histories. Fourteen states prohibit discrimination against some form of ex-offender discrimination in the workplace. Arizona, Colorado, Connecticut, Florida, Kentucky, Louisiana, Minnesota, New Mexico, and Washington ban ex-offender discrimination in public employment. Five other states, Hawaii, Kansas, New York, Pennsylvania, and Wisconsin, prohibit this form of job discrimination in both private and public employment. (Additionally, a number of municipalities, e.g., San Francisco, CA, have restricted employers’ ability to rely on criminal record information in making hiring decisions.)
For individuals with criminal histories covered by one of these anti-discrimination laws, their prospective employers cannot lawfully deny them employment based on said histories absent the existence of a “reasonable” or “direct” relationship between said history and the proposed employment. For example, a resident physician in Pennsylvania may have a legally cognizable means of challenging the denial of a hospital fellowship based on an unrelated, ten-year-old misdemeanor theft conviction. Similarly, pursuant to the state’s anti-discrimination law a banker in New York could successfully challenge a discharge based on an eighteen-year-old marijuana charge.
In contrast, though, a prospective banker in any of the aforementioned five states would likely not have a remedy if he or she had a felony embezzlement conviction in light of the putative causal relationship between the nature of the conviction and the duties of the sought after position. It is also worth re-emphasizing that this “relationship test” matters only in the aforementioned states which have prohibited or restricted discrimination against ex-offenders in private and/or public employment. As a consequence, irrespective of the nature of his or her criminal history, a similarly situated job applicant seeking work in the majority of the states would not have any potential means of direct legal redress because these of states do not prohibit this form of discrimination in the private or public sector.
If you find yourself with a criminal record and seeking work in one of these states without a discrimination ban, you may nonetheless have other options available to ameliorate the potentially adverse impact of your record on your job search. For instance, individuals charged with less serious misdemeanors (e.g., disorderly conduct; fare jumping) and possessing relatively clean criminal records may convince the judge to agree to a “probation before judgment” or “PBJ” disposition as opposed to a conviction without jail time. In essence, a PBJ or a “stet” disposition places the underlying criminal matter in abeyance for a year. If during that one year period the defendant does not commit another offense, then the underlying charge is dismissed. (If however, the defendant commits another offense during this probation period, the prosecutor can charge them with this second offense and seek a conviction for the first offense.) The principal advantage with a PBJ is the defendant avoids having a conviction appear on his or her record. In conducting employment background inquiries, many companies only focus on convictions. The absence of a conviction can only enhance an individual’s prospects of gaining prospective employment.
If (1) an individual can resolve a criminal charge with a dismissal, a nolle prosequi or “nol pros” motion (i.e., a motion by the state attorney declining to prosecute the charge), a PBJ or stet, or similar non-conviction disposition, or (2) an individual is found guilty only of a specified nuisance crime (e.g., disturbing the peace) or a single non-violent criminal act, then he or she may subsequently petition the court to have the criminal record “expunged.” If a worker with this type of criminal record can successfully have his record expunged, then the state will remove reference of this criminal activity from the court, police, and motor vehicle records and files. Moreover, the effect of the expungement order allows the affected individual to “truthfully” deny the existence of the above-described charges or convictions when seeking prospective employment.
If you have a more substantial criminal record (e.g., a “serious” felony conviction), then you may explore other alternatives in an effort to erase or minimize the effect of your record on your job search. Generally, if a former felon has completed his sentence, has remained out of trouble for the requisite period of time, and has led a productive life in the interim, then he or she can petition the state clemency board or an analogous state agency for a pardon. With a pardon, the ex-offender can then seek to have his or her record expunged. (In some jurisdictions, the underlying records are automatically expunged with the issuance of the pardon.)
In addition, similar to the process of obtaining pardons, some states allow ex-offenders to petition the sentencing court to have their convictions “set aside” based on their completion of the sentence and their years as a law-abiding and productive citizen. Once the conviction is set-aside, the ex-offender can move to have his or her record expunged.
If an individual with a felony record cannot successfully petition for a pardon or a conviction set aside, he may want to explore whether he can obtain a “certificate of relief from disabilities” or a “certificate of good conduct.” Essentially, executive branch agencies in certain states (e.g., New York, Illinois) issue such certificates to qualified ex-offenders in order to “create a presumption of rehabilitation in regard to the offense or offenses specified therein.” See N.Y. Correct. Law § 753. An employer or a licensing agency in the issuing state then has an obligation under law to “take into account” an applicant’s certificate in making a hiring or licensing decision. See N.Y. Correct. Law § 753(2). Accordingly, such a certificate may significantly bolster an objectively rehabilitated ex-offender’s chances of gaining employment and/or securing a professional license (e.g., a barbering license).
In summary, if you have a criminal record of any type, then you will want to explore any and all avenues to eliminate the existence of your record or to minimize the record’s impact on your employment options. Those with a minor, “youthful indiscretion” misdemeanor charges or convictions on their record should find the process of scrubbing your record relatively straightforward, if not easy. For those of you with more serious criminal records, this road may prove more arduous, but potentially doable. Considering that many employers can and do engage in unvarnished discrimination against ex-offenders irrespective of the underlying disposition of the offense and their manifested rehabilitation, these post-judgment steps can only help improve your employment prospects.
Similarly, if you have encountered other workplace difficulties, you too can effectively seek your remedy. You do not have to endure mistreatment in silence. You have rights!