Arrested development
Job seekers apprehended during protests could face employment challenges
As protests over the death of George Floyd continue on the streets and screens of America, it’s possible that a lasting effect of the protests may play out in the HR offices of America as well. Numerous protesters were arrested in large cities and small towns for a variety of reasons. While it may be difficult to explain a recent arrest under normal circumstances, the current environment in the United States in 2020 is hardly normal, and that could help or hurt recently arrested unemployed Americans who are looking for work.
“There are laws in place to help individuals with arrest records,” says attorney Jeanette Braun, whose practice is in Addison, Illinois. “Generally, employers are looking for convictions that would show an applicant to be untrustworthy, like convictions for embezzlement. A conviction for disorderly conduct for attending a protest would not result in a company rejecting an applicant.”
Braun says there are two federal laws that companies in all states must comply with, Title VII of the Civil Rights Act of 1964 and the Fair Credit Reporting Act (FCRA).
Although Title VII of the Civil Rights Act of 1964 protects applicants from any type of discrimination, including screening practices and hiring, the Equal Employment Opportunity Commission, or EEOC, has issued guidance explaining how employers can use criminal records to reject applicants without engaging in discrimination. To do so, a company must consider the nature and gravity of the criminal offense or conduct how much time has passed since the offense or sentence and the nature of the job, including where it is performed, how much supervision and interaction with others the employee will have and more.
“Companies should give applicants with a record the opportunity to explain the circumstances that lead to the arrest or conviction,” Braun says. “[They] should allow the applicant to submit an explanation for why the employee should not be rejected based on his or her criminal record.”
The Fair Credit Reporting Act was implemented to address those instances in which public information about an individual is inaccurate. According to Braun, an applicant’s background check may contain egregious errors, such as showing a conviction when the person was actually exonerated, showing a crime was a felony instead of a misdemeanor and more. “Companies are required under the FCRA to have an applicant consent in writing to the background check before it is performed, notify the applicant it intends to reject the applicant based on the contents of the report and give the applicant a copy of the report,” Braun says.
Present your case
If you’ve been arrested, try to gather any photo or video evidence that could benefit your case and present it to your court-appointed or private attorney, according to Gustavo Mayen, an attorney in Boston, Massachusetts. “The elements of the charges have to be met in order for someone to be charged with a specific crime,” he says.
If asked about a criminal record, whether on an application or during an interview, Mayen, says it’s important to respond to the questions that are asked and not to those that aren’t. “The person should answer honestly, as you do not want to start a job by being dishonest. However, the applicant should pay close attention to what the question is asking, as there is a difference between being convicted and found guilty of a crime versus being arrested in the past X-amount of years,” says Mayen. “An arrest does not equate to a conviction. An arrest may not even let itself be part of your record.”
If possible, Mayen says the arrested individual should consider the legal procedures that may preface a court date. In some cases, the arrested individual may have to participate in community service hours before charges are dismissed. There are other options as well, including diversion programs, which may require the criminal offender to join a rehabilitation program and avoid conviction.
Off the record
If you’ve been charged with a crime and are scheduled for court, there are still scenarios that can help you keep your record clean. “If you’re found not guilty, the client can seal their records pretty quickly, which would prevent some employers and other entities, like landlords, from seeing the charges. If the person pled or was found guilty of the crime, he or she can try to seal the record in a short time after it is completely done, with the proper paperwork and assistance,” says Mayen.
According to David Reischer, a New York-based attorney and founder and CEO of LegalAdvice.com, it’s important to know the difference between sealing a criminal record and expunging it, noting that what happens with arrest records from the recent protests will vary depending upon local state law. “A sealed record would still exist but cannot be accessed by the public, while expungement results in the complete deletion of any record that an arrest or criminal charge ever occurred in the first place,” says Reischer.
If a person has a limited prior criminal history, a qualified lawyer can successfully petition the court to seal or expunge certain types of felony and misdemeanor convictions, according to Reischer. “A person that has no more than two misdemeanors or no more than one felony has a higher likelihood to have the court to seal or expunge the arrest record,” he says. “Some states also require that the person not have any incident reported for 10 years in order to seal or expunge the arrest record.”