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So I have been made an offer for a new job and accepted it. I'm currently going through the background checks with Hire Right.
My question is how to properly handle this arrest record that will comeback when the background check is completed?
A little background on this. I filled out the required information for Hire Right to start the background checks and noticed that they didn't ask about anything on criminal record. There were no questions about if I have ever been convicted of a misdemeanor or felony. No questions on if I have every been arrested. There were only questions asking for my personal info, work history, and educational history. So I had nowhere to explain the circumstances of my arrest.
I am very confident that I can positively explain the situation as I have done this before with my prior employer but I was already working for them for about a month before they started the background check and they actually asked me about it. I was able to explain it to them and there was no problems. I am just afraid that this new employer wouldn't even ask and just automatically rescind the offer without me having the opportunity to explain myself.
Another question I had is on my employment rights when it comes to these kinds of situations with them rescinding an offer solely due to an arrest record and pending charges which will ultimately be dismissed in March of 2016 (I'm currently on Deferred Adjudication in Texas). Can the employer legally do that? One thing to note is that my arrest does not relate to the position I have been hired for. Don't they have to have a clear and justifiable conflict between job function and the nature of the offense to consider? If they were to rescind the offer should I consult the EEOC (Equal Employment Opportunity Commission) of my rights on this issue?
The way I personally see it is that I am legally innocent as I have not been convicted of any crimes. Yes, I have been arrested which they will find in the background check but not convicted. Everything I find online says that arrest records cannot be used in the decision to hire. I just wanted to see if any others have experienced this in the past.
The federal gov't does not have a law preventing companies from refusing to hire people with criminal records, although the EEOC does suggest that companies allow a candidate to explain the circumstances of arrests.
Numerous states have their own laws regarding the matter.
In order to get deferred adjudication you have to accept responsibility for the crime, so you are saying you are guilty and, in return, the court is offering you the opportunity to start over with a clean slate after certain terms and conditions are met. People who are "legally innocent" tend to go to trial rather than admit doing something they did not do. Your record does not show that you were found "not guilty," your record shows an arrest and a pending disposition. Your arrest -- and the consequences of the arrest -- are still hanging over your head since the terms and conditions have not been met and your case has not been adjudicated. This is especially critical if you have deferred adjudication on a felony charge.
The federal gov't does not have a law preventing companies from refusing to hire people with criminal records, although the EEOC does suggest that companies allow a candidate to explain the circumstances of arrests.
Numerous states have their own laws regarding the matter.
In order to get deferred adjudication you have to accept responsibility for the crime, so you are saying you are guilty and, in return, the court is offering you the opportunity to start over with a clean slate after certain terms and conditions are met. People who are "legally innocent" tend to go to trial rather than admit doing something they did not do. Your record does not show that you were found "not guilty," your record shows an arrest and a pending disposition. Your arrest -- and the consequences of the arrest -- are still hanging over your head since the terms and conditions have not been met and your case has not been adjudicated. This is especially critical if you have deferred adjudication on a felony charge.
I completely understand what you are saying here and thank you for your response.
What I am specifically confused about is the statement you made on the fact that yes I had to submit a guilty plea in order to be offered deferred adjudication, but the thing is the courts have not decided or adjudicated my case by finding me innocent or guilty of the charges as of yet which that decision is pending the satisfactory completion of my deferred adjudication terms. Once my term is completed the case will be dismissed. So technically in the eyes of the law I have been arrested and charged but still currently innocent in this situation. It is all inline with the innocent until proven guilty thing. That is why I believe if on an application I was asked if I have been convicted of a misdemeanor or felony I would check "NO". If they were to say if I was arrested and had pending charges I would then have to check "YES".
So if my interpretation of this is correct I don't think that an employer can consider my arrest record for hiring decisions because I am currently innocent in this situation. I have found supporting documentation listed in EEOC Title VII which outlines this exact situation relating to arrest records.
I did not say you had to enter a guilty plea in order to get deferred adjudication; I said that you had to accept responsibility for your action. You have been charged with a crime so, as far as a background investigation/employer is concerned, you are not "innocent" until you are found "not guilty." Once you are adjudicated, you are still not "innocent." Rather, the crime that you admitted responsibility to "disappears" (giving you a fresh start) and you are legally allowed to say that you have not been arrested or convicted of a crime, which is not the same as being "innocent." The word games won't work: if you were not guilty of a crime, you would not be in deferred adjudication. If you were innocent "in the eyes of the law" you would not be on deferred adjudication -- your charge would have been dismissed outright.
Re. Title VII: You haven't shown anything to indicate that the employer has violated Title VII (you haven't even been denied a job). In addition, Title VII is not a blanket provision prohibiting the use of arrest records in the hiring process.
I did not say you had to enter a guilty plea in order to get deferred adjudication; I said that you had to accept responsibility for your action. You have been charged with a crime so, as far as a background investigation/employer is concerned, you are not "innocent" until you are found "not guilty."Once you are adjudicated, you are still not "innocent." Rather, the crime that you admitted responsibility to "disappears" (giving you a fresh start) and you are legally allowed to say that you have not been arrested or convicted of a crime, which is not the same as being "innocent." The word games won't work: if you were not guilty of a crime, you would not be in deferred adjudication. If you were innocent "in the eyes of the law" you would not be on deferred adjudication -- your charge would have been dismissed outright.
Re. Title VII: You haven't shown anything to indicate that the employer has violated Title VII (you haven't even been denied a job). In addition, Title VII is not a blanket provision prohibiting the use of arrest records in the hiring process.
So what if you plea "no contest" and received deferred adjudication. How would that work then?
I know I haven't been denied the job. I am just preparing to cover all the angles and possibilities that may come.
The fact that you have been charged with a crime in no way suggest any wrong doing. That is why you go completely through the legal system to come with a final decision. I have not fully completed this legal process.
So what you are telling me that if you submit a plea to receive deferred adjunction that postpones the decision of the case of either being found "guilty" or "dismissal" of charges on completion/non-completion of the terms during that whole time you are not considered "innocent"? That logic breaks the whole premise of "innocent until prove guilty". How am I considered "guilty" but later found "innocent" due to the fact they dismissed my charge?
In my state you cannot plead no contest and get deferred adjudication.
The fact that you are charged with a crime 100% suggest wrong doing. I cannot comprehend how you would think otherwise.
You had to admit your responsibility to the crime in order to get deferred adjudication -- You are not innocent. In addition, upon successful completion of the terms and conditions specified, you are NOT found innocent -- the charge is dismissed. The "innocent until proven guilty" stops as soon as, wait for it ... you enter a plea admitting to your wrong doing and enter deferred adjudication. You are not considered innocent of what you were accused of. You had your due process and you took the plea deal. You are not innocent in point of law or in point of fact.
In my state you cannot plead no contest and get deferred adjudication.
The fact that you are charged with a crime 100% suggest wrong doing. I cannot comprehend how you would think otherwise.
You had to admit your responsibility to the crime in order to get deferred adjudication -- You are not innocent. In addition, upon successful completion of the terms and conditions specified, you are NOT found innocent -- the charge is dismissed. The "innocent until proven guilty" stops as soon as, wait for it ... you enter a plea admitting to your wrong doing and enter deferred adjudication. You are not considered innocent of what you were accused of. You had your due process and you took the plea deal. You are not innocent in point of law or in point of fact.
There are many instances were the unfairness of the US legal system forces many defendants to accept deferred adjudication with a clear misunderstanding of the consequences. Deferred adjudication is supposed to be a second chance, a chance to keep one’s record clean. Even worse, it is most often offered in the weakest of cases. I have no doubt many innocent defendants, such as myself, plead guilty to deferred to avoid the possibility of a conviction and/or jail time.
So in that situation am I "responsible" for wrong doings that I never committed just because I didn't fully understand the consequences and was scared of the possibility that if I were to go to trial, spend an extra $10K on top of what I already paid my lawyer, the time I was taking off work, the stress and worry it was placing on my family, and the small risk of being found guilty and spending jail time?
That is what happened to me and I was persuaded by my lawyer that if I did the deferred and satisfactorily completed the terms it will be dismissed and I wouldn't have any problems. It would be like nothing ever happened. All I just needed to do was sign the plea deal and plead guilty to the judge. It took no more then 30 minutes and I was free. I was initially all for taking it to trial because I knew I didn't do anything wrong but all those reasons and talking to my family and lawyer made me decide to accept the deferred adjudication.
Without turning this into a legal thread, 1) You are being given a second chance and a clean slate -- it will happen in March. 2) Deferred adjudication is not offered to the weakest of cases -- it is offered to all defendants whose crime falls under the deferred adjudication guidelines. Many, many, many strong and slam dunk cases go to deferred adjudication because it gives the accused another chance, and it keeps from clogging up the court system.
Without turning this into a legal thread, 1) You are being given a second chance and a clean slate -- it will happen in March. 2) Deferred adjudication is not offered to the weakest of cases -- it is offered to all defendants whose crime falls under the deferred adjudication guidelines. Many, many, many strong and slam dunk cases go to deferred adjudication because it gives the accused another chance, and it keeps from clogging up the court system.
Thank you very much. I do truly appreciate your insight.
So then back to my original question. Can an employer legally hold this against me when it shows this on my background check? Can they automatically rescind my offer without giving me the opportunity to explain the situation and then taking that into consideration with the criminal report to the responsibilities of the job?
The short answer, at the federal level, is "yes" as long as they are in compliance with federal case law.
At the state level, it depends on what state you are in.
You need to wait to get a response and go from there.
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