Written By ESR News Blog Editor Thomas Ahearn
Attorney Lester Rosen, founder and chief executive officer (CEO) of leading global background check firm Employment Screening Resources® (ESR), has written an article called “Frequently Asked Question by Job Applicants: Should I Let a Potential Employer Know Upfront if I have a Criminal Record?” to help ex-offenders seeking work know if they should let employers know upfront if they have a criminal record.
The answer is actually a bit complicated, writes Rosen, author of ‘The Safe Hiring Manual,’ a guide to background checks. For an applicant with a criminal record, whether or not to say anything and when is a real “Catch-22.” If you do not mention a criminal record and the employer finds out about it on their own, the concern is that they will treat you as a dishonest person and not consider you for employment.
Conversely, Rosen explains that if ex-offenders follow the “honesty is the best policy” approach and self-report a criminal record, the concern is that employers will still not hire them because of the criminal record and they will not even have the chance to show the knowledge, skills, and abilities, to perform the job. Before making any decision, Rosen explains there are things ex-offenders should consider first:
- Investigate whether under the laws of your state an employer can even consider your particular criminal record. Many states prohibit the use of criminal matters for employment that have been expunged or judicially set aside in some manner.
- You may be eligible to go back to court and have the criminal matter removed, expunged, sealed, or set aside under state law. That may allow you to legally and ethically answer “no” when a question is asked about a past criminal history.
- Many jurisdictions have “Ban the Box” laws that prohibit an employer from even asking in the first place if you have a criminal record and delay the question until at or after an interview. The idea is to give applicants with a criminal record a chance to compete for a job based upon their knowledge, skills, and abilities and not to be subject to an early “knock-out” punch just because of their status as an ex-offender.
- Some states and cities have “Fair Chance” laws that go further by giving applicants with a criminal record certain rights to make sure the record is used fairly. They are based on the U.S. Equal Employment Opportunity Commission (EEOC) Guidance of 2012 that make it clear that criminal records may not be used to automatically exclude someone from employment unless an employer has a justification based on the nature and gravity of the crime, the nature of the job, and the age of the crime.
- At some point, most employers will do a background check. Under a federal law called the Fair Credit Reporting Act (FCRA), the background check requires your written consent and you are entitled to know what is in the background check, especially if it’s used to deny a job, and to dispute any findings. In fact, if an employer intends to use the background report in any way to deny a job opportunity, you must be notified and provided with a copy of the report as well as a statement of your rights.
Rosen goes on to explain that most background screening firms will not report anything that employers cannot legally use. If ex-offenders do not disclose something because they had the legal right not to, and the background report brings it up, they are entitled to both dispute the report with the background screening firm and get an “Individualized Assessment” from the employer in order to make their case.
However, Rosen also warns ex-offenders that hiding a criminal record can be risky if there is no legal justification for not mentioning their criminal record. A past mistake honestly and accurately disclosed can potentially be much less damaging than an employer concluding an applicant was dishonest after getting the background check report. Again, ex-offender applicants face a real “Catch-22” situation.
The bottom line for ex-offenders is to get more information about their case, get advice from an attorney or a re-entry or second chance organization, and understand state and local law so they know their rights that they are entitled to receive. The complete article by Attorney Lester Rosen of Employment Screening Resources® (ESR) is available at www.linkedin.com/pulse/frequently-asked-question-job-applicants-should-i-let-lester-rosen/.
In July 2018, ESR News reported that the unemployment rate for ex-offenders was 27 percent – higher than the 25 percent unemployment rate in America during the height of the Great Depression in the 1930s – meaning that more than one out of four people who served time in prison and were released are looking for work but cannot find a job, according to a report entitled “Out of Prison & Out of Work.”
ESR White Paper for Ex-Offenders Looking for Work
Employment Screening Resources® (ESR) has released a complimentary whitepaper entitled “Ten Critical Steps for Ex-Offenders to Get Back into the Workforce” to help applicants with criminal records avoid any “Catch 22” situations while seeking a job. The whitepaper is available at www.esrcheck.com/Tools-Resources/Whitepaper-Library/Ten-Steps-for-Ex-Offenders-to-Get-Back-in-Workforce/.
NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
© 2018 Employment Screening Resources® (ESR) – Making copies or using of any part of the ESR News Blog or ESR website for any purpose other than your own personal use is prohibited unless written authorization is first obtained from ESR.