On June 12th, The Wall Street Journal reported that when most employers were asked if they conducted criminal background checks, the overwhelming response was “YES.” The newspaper found that that not only has there been an increase by the government in conducting criminal background checks, but that private industry employers were also following this trend. In fact, The WSJ cited a recent Federal discrimination lawsuit that revealed a study by the Society of Human Resource Management which found a whopping 92% of all employers now use criminal background checks for some or all job openings within their company.
Rejecting a Job Applicant Based on Their Criminal Record
No federal laws exist that prohibit an employer from inquiring about your previous arrest or conviction for a criminal offense. However, on April 25th, 2012, the U.S. Equal Employment Opportunity Commission established guidelines for employers associated with their employee screening and hiring practices. Although the EEOC does not prohibit employers from using criminal background checks, it does urge them not to summarily deny employment to an applicant solely upon the finding of a record of arrest. Rather, employers are encouraged to consider:
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The nature and gravity of the criminal charge?
For example, the employer should have a legitimate concern regarding someone who has a criminal record involving dishonesty, when the employment tasks include the employee’s handling of money or other valuables. Likewise, someone with a record of past violent behavior is likely to be deemed an inappropriate fit for a job that entails regular contact with members of the public; -
The Type of Workplace?
A criminal record associated with illegal drug possession might be cause for concern in a position where an employee’s impairment could jeopardize safety on the job. Likewise, some places of employment are subject to state laws that ban the hiring of someone who was convicted of a felony charge or certain misdemeanor offenses. For example, workplaces such as hospitals, schools, or daycare centers. -
The period of time that has lapsed since the arrest?
If a significant period of time has passed without new or additional arrests, this could show rehabilitation and suggest that the individual is worthy of having the employer overlook the blemish. The same philosophy could hold true where the offense was committed while the applicant was a youth and simply exercised poor judgment because of his naivety and a lack of life experience.
Background Checks as Part of The Job Application Process
To request a background check, an employer typically requires the job applicant to sign a disclosure and authorization form. Where the employer’s job screening guidelines are overreaching and inappropriate, the EEOC provides protection against discrimination. See Forbes.com’s article, “The 10 do’s and don’ts of conducting employee background checks. However, from a practical standpoint, bringing a federal lawsuit is a long road for someone who simply wants to quickly get back to work and become a productive member of society.
Easy Access to Arrest Data by Employers
The “information age” and creation of online websites associated with law enforcement agencies and the Clerks of Court, have resulted in easy access to arrest records. Both employers and firms offering background check services can quickly search data bases which can confirm a previous arrest. See: Employment Screening Resources, Inc. and HireRight. In addition, there has been a proliferation of mug shot and arrest record websites built with data culled from from governmental online sources. These companies “hold you hostage” to their world-wide publication of sensitive data, unless you are prepared to pay a fixed fee to have your photo and criminal arrest information deleted from their sites. See: Lawsuit goes after ‘extortion’ mugshot websites.’; Lawmaker Takes Aim at Mug Shot Websites and Digital Extortion.
Plenty of Job Applicants From Which to Choose
The popularity of criminal background checks appears to have been fueled by our recent recession. There are often many applicants for only a limited number of job openings. This translates into a significant advantage on the part of employer. In other words, they can afford to be choosey.
The employer’s hiring philosophy is often, “why take a chance with someone who has a criminal record, when I have plenty of other applicants to choose from who are “squeaky clean?” Let’s face it, an employer may tell you that you were denied the position because you were unqualified. In fact, he could contend you were passed over for any number of reasons. On the other hand, he could be honest and tell you that it was your criminal record that cost you the job. The problem is, regardless of the explanation provided by the employer, someone else got the job.
Cleaning the Slate by Having Your Criminal Record Sealed
-- Put Your Job Application on an Even Playing Field --
Except for a few narrow circumstances, Florida law permits a person who has had their criminal records sealed or expunged to truthfully and lawfully deny that they were ever arrested or charged with a crime. More importantly, a sealed or expunged criminal record is no longer accessible to employers, background check firms, licensing authorities, or the general public.
Having a record sealed or expunged results in the removal of all information pertaining to an arrest and prosecution, including those records held by the:
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FBI (NCIC rap sheets);
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FDLE (FCIC rap sheets);
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CJIS (Pinellas county Online Consolidated Justice Information System);
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PCSO (The Pinellas County Jail -booking photo & arrest data); and
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The particular Law Enforcement Agency involved in your arrest.
A Pinellas County Circuit court order sealing a criminal record also:
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Directs any other governmental agencies to whom data concerning your arrest was disseminated, to remove the information from public view and access.
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Accordingly, an employer or independent background check company would be informed by any of these entities that “no record of arrest exists.”
We Can Help!
The three lawyers in our office are former state prosecutors with considerable experience in sealing or expunging Pinellas County criminal records. If you have a closed Pinellas county case, an attorney in our office can help. We are often able to determine your eligibility to have your record sealed or expunged by looking at the online court records and discussing your case with you right over the phone.
Call Us to Discuss the Sealing of Your Pinellas County Arrest Records
A Defense Team of Former State Prosecutors
Free Consultation - (727) 578-0303
An informative website page: Seal or Expunge Your Criminal Case
Criminal Defense: www.defensehelp.com
DUI Defense: www.duistpetersburglawyer.com
Prescription Fraud: www.floridaprescriptionfraud.com
Seal or Expunge Your Pinellas Criminal Record & Land That New Job
The Sealing & Expungement of Pinellas County Criminal Records
Recession Motivates Floridians to Seal Arrest Records
Colleges Probing Students’ Pasts
Should Colleges Perform Criminal Background Checks?
Florida Statute Section 943.0585 Court Ordered Expunction
Florida Statute Section 943.059 Court Ordered Sealing
Chapter 11C-7, Fla. Admin. Code Expunction Sealing Policy & Procedures
How to Obtain Copies of Your Pinellas County Criminal Records
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