I can tell almost instantly when an applicant really believes their criminal record check should be clear. How? The crying and gulping for air. Have kids? You know what that sounds like. This is a conversation I have with young applicants once or twice a month. Generally, they have made a stupid mistake like illegal consumption of alcohol.
The conversation usually goes something like this:
“My”..sobbing...”attorney”...gulping for air...”said”...more sobbing...”this criminal record”...gulping...”would not show up.”
“Take a deep breath,” is my first advice.
This young applicant is fresh out of college and applying for her first teaching position. It is not the criminal record itself that has them on the not-getting-hired bubble but the lack of disclosing the record.
The employer thinks you lied. Not good.
Honesty is #1 on most employers list of character issues. Dishonesty in the hiring process will almost always be grounds for adverse action.
Here is the real scoop. Unless you have the criminal record expunged, it will always show.
We receive hundreds of phone calls a year from prospective applicants wanting to know what will show on a criminal background check. My advice is always, if you have a record, report it or you will not get the job.
The following dispositions are NOT synonymous with clear:
- Not Guilty
- Pre-Trial Diversion
- Nolo Contendere
- Adjudication Witheld
Now, some of these records, still visible to background screening firms, may not be reportable under the Fair Credit Reporting Act or state law, but they are not clear.
Navigating the myriad of court dispositions during a criminal record check can can be confusing for employers. Look at the West Memphis, AR case from 1994 that is back in the news. Why? DNA says the three kids convicted 17 years ago are not the perpetrators and will be freed.
Here is the catch.
The three must plead guilty to the murders. Did you get that? Plead guilty to get out of prison.
Well, it is called an Alford plea. This means the defendant essentially says, “I am innocent but for some crazy reason it is in my best interest to plead guilty.”
The crazy reason in this case is freedom. The state wants the Alford plea so the three cannot turn around and sue because of losing 17 years of their life.
Guess what. They will be free but all future background checks will say they are guilty of murder.
I know, I am scratching my head too.
Let’s be honest, if criminal attorneys, who are charging $100-$300 per hour and interact with the courts daily, can honestly tell their clients that the case will disappear then why would employers have any better understanding of what will and will not show on a background check?
The only disposition that is synonymous with clear is expungement. This is the same as wiping the slate clean. As if it never occurred.
One key to understanding the expungement process is it does not occur naturally or automatically. This is a process that requires petitioning the court.
The challenge for employers is determining whether the applicant honestly believed this criminal record was clear. Or was the applicant trying to play you, hoping that nothing would show?
The key is to partner with a quality background screening firm that is providing deep, comprehensive criminal background checks.
If you are relying on cheap or limited 7 year background checks then this article was probably boring. Why? Because this issue never comes up. These applicants are sliding through your process without having to disclose their true backgrounds.
Click here to determine if your background screening process is really protecting you from bad hires or volunteers.