Criminal History & Employment Applications: What Information to Disclose
Everybody has a past. If yours is a matter of court record, however, you may find it difficult to negotiate job interviews. There is a fine line between disclosing what you must to be honest and saying too much and hurting your chances of getting the job.
A job interview is all about your past, so it is impossible to avoid the subject altogether. However, using the interview to demonstrate how the facts of your past led you to get on a better career path is the key to obtaining a job if you have a criminal history.
Employment Criminal Background Check
If you are concerned about getting a job with your arrest record, you are not alone. By the time of their 23rd birthdays, almost one-third of Americans have been arrested, according to a 2009 study. Getting a job with an arrest record can be difficult, and a lack of stable employment is an important predictor of re-entry into the criminal justice system. Success in finding and keeping a job is the key to breaking this cycle.
A majority of the arrests are for nonviolent, minor offenses. In 2009, nearly 14 million adults were arrested, but only 4% of them were for violent crimes. Here is a breakdown of the arrest statistics from that year:
- 12% – drug offenses
- 18% – property crimes
- 10% – simple assault — no weapon or serious injury
- 56% – other offenses
Based on these statistics, it is easy to conclude that most people with an arrest record do not pose an ongoing threat to society. In fact, at least one-third of them are never convicted, but they are considered to have a criminal history because of their arrest.
There are two federal laws that protect the rights of job-seekers with criminal records. The Civil Rights Act of 1964 was enacted to deal with the broader issue of discrimination, but it includes some provisions to limit the use of criminal records by employers. The legislation established the Equal Employment Opportunity Commission (EEOC), a body which continues to monitor discriminatory employment practices.
There are a number of sources of criminal history records, including:
- Courthouses in various jurisdictions
- Police and correctional departments
- Criminal registries
- State criminal records
- FBI files
The EEOC recognizes that state and federal criminal records are sometimes incomplete. They also have documentation of the fact that criminal records may be inaccurate since multiple and sometimes overlapping jurisdictions maintain records. That means employers should not rely solely on background checks in making important hiring decisions. However, the EEOC estimates that 92% of employers perform background checks on some or all of their employees.
The Civil Rights Act establishes that employers may use criminal background history in hiring decisions when the information is related to the job in question and necessary for the business. Over the years, this standard has been interpreted a number of times by different courts and clarified. The underlying intent is presumed to prohibit an employer from using criminal history information to disqualify a person completely from employment. Rather, the employer should focus on the specific qualifications for the job and whether hiring someone with a criminal background would prevent the person from doing that job successfully or might open the company up to financial or physical harm.
Employers are guided to use specific information to avoid hiring people who would present a danger to their business. By looking at the nature and gravity of the crime committed, the length of time since the offense, and nature of the job to be performed, employers can legally exclude people with certain criminal history from particular types of jobs.
The Fair Credit Reporting Act (FCRA) also provides some oversight for employers using background check information in hiring decisions. The Federal Trade Commission (FTC) through the Fair Credit Reporting Act, attempts to address issues of accuracy, relevance, confidentiality and proper use of consumer information released by reporting agencies.
Common types of errors in background check information include:
- Misclassification of crimes
- Records from another person with the same name
- Multiple reporting of the same offense
- Partial information
- Expunged convictions
Once erroneous information is reported to an employer, it can be difficult to erase the resulting discrimination. The FRCA makes reporting agencies and employers responsible for the accurate reporting and proper use of background check information. Under FRCA, employers must get written consent from you to order a background check. They must also notify you if they plan to use the results of a background check as a reason to disqualify you from employment. They are also required to give you a copy of the report they obtained if it contains information they find objectionable for your employment.
Beyond these two federal rules, many states impose their own restrictions on an employer’s ability to use a background check to screen out applicants. In the state of Texas, there are just a couple additional provisions in place:
- Criminal arrests or convictions that are more than seven years old cannot be held against you by a prospective employer if the job you are seeking pays $75,000 or less. For jobs paying more than $75,000, these older convictions may still be considered. The seven-year exemption also applies to certain jobs with specific safety concerns.
- The state of Texas does not require you to disclose any criminal records that were expunged. If they were expunged due to acquittal, pardon or any other legal reason, your prior arrests and convictions do not exist for matters of employment.
Job Application: Criminal History Question
The first step in filling out a job application if you have a criminal history is to know your details. There is a difference between an arrest record and a criminal record, so be sure you understand what your criminal history shows. Also, the date of your last arrest or conviction could make a difference as to whether you have to disclose your record or not. Know your dates and dispositions before beginning the application.
Assume that any employment application will ask at least one question about criminal history, and be prepared with all of your information. Before disclosing anything, though, read the question carefully. Is it asking about arrest records, convictions, misdemeanors or felonies? It is important to understand these distinctions and how they apply to you.
When you are sure you understand what the question is asking, give only the information requested. If it is a simple yes or no question, do not elaborate. If the question only asks about felonies, do not consider your other offenses when answering. You want to give a truthful answer, but there is no need to give any more information than the question asks.
You should always assume your answer to the criminal history question will be verified by a background check. Any discrepancy between your answer and what the background report reveals will be considered a lie and a barrier to employment. Never assume you will be better off not admitting you have a criminal history. Many times, a criminal record can be overcome by other aspects of the employment application. A lie is almost certain to exclude you from qualification.
Finally, use the space given to explain your answer. Most criminal history questions on employment applications offer space to explain if you indeed have a criminal history. Use this space to qualify your answer by giving important details about how long ago — especially if it was more than seven years — your arrest was. This is also the place to tell if you were acquitted or if the charges were dropped. If you were convicted, be sure to mention that you fully paid the penalty and have never been arrested since. Any details that can put your criminal history in the past and show it is not part of your current lifestyle will help.
How to Write a Letter of Explanation for a Criminal Record
Getting an opportunity to explain your criminal history to a prospective employer might be the best way to overcome this hurdle to employment. Many employers will ask you to write a letter explaining your circumstances, so they can put your background in the proper light with respect to potential employment.
The best way to explain is in a letter. This way, you have a chance to choose your words carefully, and your explanation becomes part of your application package. You may feel like you do not want everyone who reads your application to hear your story, but if it is a compelling one, it could get you the job you want.
Here are some tips for writing a letter of explanation:
- Keep your description brief. Your whole letter should be about three paragraphs. Begin by telling how you got in trouble in the first place, but keep this part short. Give just enough detail for the employer to understand the nature of your infraction, but do not give too much detail. If you go on and on about the incident, you run the risk of sounding self-righteous or even glorifying what happened.
- Try not to make excuses for what you did. If you were not involved in the incident but were arrested anyway, you should explain that — but do not go into any detail about things other people did wrong. Blaming the arresting officer for being unprofessional or claiming the court personnel were rude to you will not put you in a good light. It if far more noble to accept the blame yourself for something you did wrong than to try to blame it on others.
- Describe what you have done since the incident to correct your behavior. If you took an anger management class, got counseling for alcohol abuse or completed a debt relief program, now is the time to mention it. No need to go into too much detail here, either. Just list the things you have done to learn from your mistake.
- Illustrate how your life is different now than it was when you got arrested. Your involvement with the criminal justice system might have been a negative experience, but because of it and everything you did to help yourself, you are different now. Give examples of your current behavior, like caring for others, caring for yourself and acting responsibly, that illustrate you would never get into trouble again.
- Explain how hiring you would be a benefit to the employer. Be sure to highlight how getting and succeeding at this job is a milestone on your future path. Describe how having someone with your goals and determination to succeed would benefit the company.
- Consult with an attorney before putting anything in writing. According to Mark Morales, founder and owner of Morales & Sparks, PLLC, “Anything a person submits in writing about their criminal history could potentially be leaked and become public knowledge; therefore, it is advisable to seek legal advice before submitting any letter explaining criminal background to a potential employer.” Your Texas criminal defense attorney can advise you best with their legal knowledge and experience with your case.
How to Explain Criminal History
If you are wondering how to get a job even though you have a misdemeanor, the answer is to be honest about your criminal history. It is a good idea to mention your record early in the application process. You may be inclined to hide your past and only deal with it if it should come up, but bringing it up yourself is a better strategy.
While you do not want to dwell on the details of your criminal record, bringing it up first, before you are asked about it, shows a sense of responsibility. When you bring it up, do so in the context of other more positive attributes. You do not want the fact that you have a criminal history to define you as a job applicant. Offer details of your work history that show you are capable and conscientious.
When you bring up your criminal record, offer a few details but do not go into it depth. Once it is out there, there is no reason to wait for a response, either. Just move on to talking about more positive aspects of your past and work history. Remain open to answering questions if the interviewer should have any. You do not want to appear defensive in a job interview. A defensive posture will draw negative attention to your qualifications.
If you are asked specific questions about your criminal history, answer them truthfully but be brief. Try not to offer any more information than the interviewer wants to know. Take responsibility for your past — never make excuses, but limit your explanation. You do not want to appear to be justifying criminal behavior, no matter how minor it seems to you.
Always follow up your answers with some positive information about the skills and qualities you bring to the job. You do not want to leave the conversation on the topic of your criminal history. Demonstrate how you have turned it around and taken some good lessons from a bad situation.
You may want to practice explaining your criminal history before the actual job interview. An interview can be stressful, and many people talk too much or ramble on when they are nervous. Decide what you are going to say about your criminal record and rehearse it. This way, even under stress, you will keep it brief and to the point.
Texas Criminal Defense Attorneys
A criminal defense attorney can be your best guide to negotiating a job interview even if you have a criminal record. It is not a bad idea to talk with a Texas criminal defense attorney about your specific case and what information a prospective employer can legally obtain.
If you have ever been arrested, contact our experienced defense attorneys at Morales & Sparks to find out whether you have to disclose your arrest record to employers. Contact us online or call our office for more information.
Disclaimer: The purpose of this post is to provide general information and is not to be constituted as legal advice. If you need help with a specific issue, please seek the advice of an attorney.