The Nudge, Nudge, Wink, Wink Of Criminal Background Disclosure

March 19, 2014

It's a question that often comes up in a number of telephone calls that I get: Can an employer refuse to hire me because of a prior arrest or conviction?  My answer is that it's going to depend upon a lot of circumstances, many of which you will not be informed about.  And if I'm bottom-lining my reply, it's going to basically come down to "no" they're usually not supposed to but "yes" they will probably use every excuse, legal or not, to reject your application if they don't want to hire someone with an arrest or conviction history.

In keeping with the issue of seeking jobs with an arrest or conviction record, I read with interest a March 13, 2014, press release from New York State Attorney General Eric T. Schneiderman: 

Now there's one hell of a catchy headline. Wouldn't you just love to see them make this one into a movie and try to fit all of that onto a theater marquee?  

New York laws make it illegal to automatically disqualify job applicants based solely on criminal history. As explained in the press release:

State law requires that employers consider a number of mitigating factors in making hiring decisions based on criminal history. These include, for example, the nature and gravity of an applicant's criminal conviction; its bearing, if any, on the specific responsibilities of the job sought; the time that has elapsed since the conviction; the age of the applicant at the time when the offense was committed, and evidence of rehabilitation. The law further prohibits third parties from aiding and abetting employers in violating the statute. . .

The NYAG entered into agreements with leading background check agencies:
  1. HireRight Inc., California (does business in 200 countries)
  2. First Advantage, Florida (services over 45,000 customers)
  3. Sterling Infosystems, New York (services over 20,000 customers); and
  4. General Information Services Inc. (services over 2,500 clients); and 
Pursuant to the agreements, each of the agencies will refrain from automatically disqualifying applicants with criminal convictions. In apparent contravention of those laws, the cited agencies may have engaged in issuing automatic rejection letters triggered by a conviction. The NYAG asserts that the ultimate hiring decisions will be left with employers, who must conduct an individualized consideration of candidates in accordance with New York State law.  As such, the purported blanket rejection of many ex-offenders by the agencies is supposed to cease. 

All well and fine. Except - and of course there's gonna be an exception. We all still very much live in a Monty Python world of nudge, nudge, wink, wink, say no more

So, yeah, sure . . . this NYAG agreement is going to put an end, once and for all, to the discriminatory hiring practices that routinely redirect to the garbage can the employment applications from folks with arrests or convictions.  

Still, many of us shift uneasily in our seats and ask the more troubling question: What's gonna happen when all these job applications come in-house to the employer? 

The NYAG would have you believe that each employer is going to undertake a rigorous case-by-case inquiry of each arrest, conviction, and plea. Course they are. Sure. Nudge, nudge, wink, wink, say no more.

Don't get me wrong, I applaud the NYAG's announcement. Far too many folks are wrongly arrested or arrested under dubious circumstances and find that their employment applications are dead-ended - and I mean folks who have nothing more than an arrest on their record and no conviction. Oh, you say, employers aren't supposed to ask about mere arrests. They're probably not even supposed to learn about mere arrests. Yeah, Of course, and what planet have you been visiting lately?

Then there are the idiots among us who did all sorts of foolishness as young adults, stuff that ended up as misdemeanors or subsequently dismissed charges. You know, the stupid crap involving weed, coke, too much beer, panty raids, shoplifting, young boys, young girls.  Ah yes, life is full of consequences, foreseen and unforeseen.

In my cynical world, I'm pretty sure that I know what's going to happen in this post-Agreement-about-automatic-rejection-of-job-applicants-with-criminal-histories-by-agencies

Employers will get job applications including those from folks with the wrong boxes checked off "YES" for criminal histories. Those applications will be directed to Murray (that's what I call all those office drones who get these assignments). Murray will be told to do a case by case analysis of each application. 

Hey, Murray, do a thorough job. Make lots of notes about the arrests, charges, convictions, or pleas. Make specific notes about the things that put the applicant in a better light. If you'd like to suggest that we hire someone even with these disclosures, use the red pen to highlight your recommendations. Then, after you've done all that grunt work, forward the files to Harriet (that's what I call the compatriots of the Murrays). Harriet will send out a lovely rejection letter to every applicant that you considered.

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