Frequently Asked Questions

This answer has a few variables that would best be answered by an attorney experienced in local employment laws. Traditionally and in most cases, lying in an employment application is grounds for disqualification as it cast a shadow of doubt about their honesty and integrity. Bear in mind, that due to an extremely competitive job market and exclusion of minorities with criminal past, the EEOC has updated their policy. An applicant may have legally responded “No” to the question of “have you ever been convicted of a crime?” even though there were some brushes with the law in their past. What we can tell you is that a criminal conviction is not an automatic reason to deny employment.

• How long ago did this happen?
• Is the nature of the criminal offense related to the open job position?
• Does the applicant possess such extraordinary skills that no other applicant matches up to? Otherwise, your next applicant may be a better choice by offering the same job skills and mainly, because they are honest about their past

To accurately answer your question, there is no clear-cut, one-size-fits-all answer and it varies by not only states or counties, but also by municipalities. To further state my case, there is something called “Ban-the-box” which completely eradicates the infamous question of “Have you ever been convicted of a crime” in employment applications. There are plenty of states and municipalities that abide by it today. The purpose of ban-the-box is to give a fair chance to applicants who may possess great job skills, but had a few criminal flaws in their past. Having said that, the question may be asked after successfully passing the initial interview and being considered for the job position by asking “Is there anything in your past we should know about before conducting a background check?”.

In addition and oftentimes, an employer may make a job offer with the contingency of getting a “clear” background check based on what type of criminal offenses may be accepted as written in their HR policy manual.

Now whether an applicant lied in stating they had a clean record when it was not the case, is open for debate as it may not always be automatic grounds for firing —although I must point out that it does hinder a questionable doubt as to their character and integrity. To further illustrate, an applicant may have had a criminal charge over 7 years ago and they would be legally correct in answering “No” (this applies to about a dozen states). Also, if the case was dismissed, found innocent, charge resulted in probation before judgment, pre-trial intervention or expunged after certain conditions were met, they would still be correct on answering “No”.

The response above does not take into account FCRA and EEOC guidelines, but only answers your question about an applicant lying about their past when asked about any past crimes.

You can learn more about the employment background check process here.

Disclaimer: I am not an attorney and my response should not be construed as legal advice as it is merely based on my years of experience in the industry.

• Are the references former employees that were friends with your job applicant?
• If so, can they perhaps not know everything about your applicant?
• Could your applicant have committed a crime from the last time they were in contact with him/her?

It is unfortunate to have to cast doubt and suspicion on everyone nowadays, but you can see it the news how many people have conned others even as being part of a church or a volunteer group doing good deeds. Besides, as an employer – it is your duty to protect your business from theft and provide a safe workplace for your other employees. If they don’t have anything to hide, they would probably most welcome your background check as they may also want to find out if there are any discrepancies that they are not aware of.

Your potential job applicant’s record may have been pleaded down, expunged, sealed or maybe they were found innocent at a later trial date not yet showing in the criminal database search. What if it was mistaken identity?

To fully comply with the FCRA and EEOC, you need to verify the current status at the originating source: county court. That’s why the FCRA exists, to give everyone a fair opportunity at disputing derogatory findings.

Misdemeanors are crimes that carry a maximum sentence of less than 1 year. In a few states, crimes that are charged as misdemeanors are considered up to two years (i.e., Vermont). Examples of misdemeanors include petty larceny, theft, simple assault, prostitution, shoplifting, most DUI/DWI charges, perjury, domestic abuse, perjury, etc. In most instances, incarceration is in a county jail or similar facility, rather than a state prison. Most misdemeanor convictions also require the payment of a fine, probation, community service and restitution.
In conclusion, misdemeanors are less serious crimes than felonies.

Felonies are violent or non-violent crimes that carry minimum confinement of a year or more. Examples of felonies are Murder, Manslaughter, Aggravated Assault, Felony Assault, Kidnapping, Arson, Grand Larceny, Sale or manufacturing of drugs, Tax Evasion, Animal cruelty, Treason. etc. Most felonies carry different degrees of severity and are initially filed as first-degree felony, second-degree felony, etc. In most felony cases, offenders (felons) serve their time in state prisons.

• Was your search for personal or hiring/renting business purpose?
• Did you enter correct spelling?
• Could the record be under an alias, former name?
• Are you sure about exact DOB?
• Was it merely an arrest with no formal charges filed in criminal court?
• The criminal record could have been sealed or expunged
• Did it happen very recently or a very long time ago? Due to legislative pressure in convicts not being hired for something that occurred many years ago, many courts have quashed old cases
• In the case of an onsite county search, did you search the standard seven years or paid additionally for more years to be searched at court’s archives
• Did it happen at the federal level instead of the county/state level? There is a big difference
• In the case of a nationwide criminal database, there are some states that just don’t bulk sell lower level criminal offenses (misdemeanors)

And finally, criminal databases are not a one-size-fits-all solution as you can interpret from the variables mentioned above. Do contact us and explain the nature of your concern and we will try to help you understand as to why that record might not show.

• That the background check process is only one part of the hiring process that may include other decisioning information
• Document the background check services that will be ordered for each job position or job classification
• That the company understands its obligations under the Fair Credit Reporting Act and will comply with them
• That every applicant undergoing a background check will be required to read the legal disclosure form
• That every applicant must consent to the background check prior to any request
• That the company will comply with all equal employment laws
• That the company will factor in the guidance provided by the EEOC when considering criminal conviction information in an employment decision. Known factors to be considered include: The facts and circumstances surrounding the offense, The number of offenses for which the individual was convicted, The age of the individual at the time of conviction or release from prison, Evidence that the individual has performed the same type of work, post-conviction, with the same or a different employer, without incidents of criminal conduct, The length and consistency of employment history before and after the offense, Any efforts of the application towards rehabilitation, Employment or character references obtained regarding the individual’s fitness for the particular position, Whether the individual will be bonded for the position
• That any adverse action taken based on a background check will be preceded by a disclosure to the applicant that will include pre-adverse notice, a copy of the background check and the rights afforded to the applicant under federal and state law
• That any information received by the company after the pre-adverse action notice has been delivered will be considered prior to any final adverse action
• Document that in the event of a dispute, no final employment decision will be made until the dispute process has been completed
• Document that your company will retain all documentation related to the background check for a minimum of five years (the statute of limitations established under the FACT Act)

Source: Curt Schwall, VP, Corporate Ethics and Compliance – Sterling Talent Solutions

Most jurisdictions may have different code abbreviations for all criminal charges and are too vast to list here. There really is not a standardized national criminal code book for every single criminal case that is used by court clerks.
We highly recommend to simply do a copy and paste of the criminal charge and search in Google. Just make sure that it resolves to the state in question where the charge was found. For California penal codes which are always numbers, you can search for description at FindLaw. California cases starting with PC are Penal Code (criminal) and VC stand for Vehicular Code.

If anything is more about character than effectiveness. Having said that, an employer must carefully review the nature of the criminal offense in relation to the job, how long ago it happened and whether there is a pattern of continuing criminal activity. Take into account that people make mistakes and some do redeem themselves to become better persons and therefore, grateful and loyal to employers for having given them a second chance.

Nope, unless an employer contracts El Cheapo Background Check Company. To begin with, a Consumer Privacy Number (CPN) is not registered with the Social Security Administration. Thus, that will trigger the first red flag that a criminal background check is not being processed using your true identity. An employer will ask you to further explain the discrepancy to give you the benefit of the doubt in case of a typo. You may say you had your identity stolen and obtain a CPN which they will then ask you for your true identifiers that can be verified — but in the end, they will move on the next candidate.

The first and cardinal rule of doing background checks is to properly identify the subject’s identifiers and any known aliases, former names. Otherwise, you are searching for a ghost.

By the way, CPNs are a known scam just like diploma mills.
Source: CBSV • Consent Based Social Security Number Verification