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Criminal Background Checks and Employment

Denver, CO |

I have been working with a staffing company since November/December of 2012 (7 months). I had to fill out an application for the staffing agency, and do a face to face interview. I have a 3rd Degree Assault on my record (DV) that I disclosed this information both on my application and in my interview. Recently I was offered a position by the staffing agency and screen, tested to make sure I qualified for the position. I passed all assessments, etc. Was set to start tomorrow, but based solely on my background check was denied the position and told they have a flat ban on certain offenses, which means they should have never worked with me to begin with according to them. Based on info EEOC I am looking at complaints or a law suit for discrimination but want to check the validity of this.

From everything that I have read employers cannot base termination or employment solely on the results of a criminal background check, cannot have a "flat ban" policy automatically denying applicants employment, as well as rules they have to follow such as sending a copy of the background report to the applicant along with information regarding certain policies prior to any adverse actions, and so on. Most of this information is talking about people with felonies and not misdemeanors. I have not been able to get a job in 4 years due to the misdemeanor on my record and this feels like my right to work is being infringed upon.

Attorney Answers 2

Posted

Whatever you have been reading is wrong - at least in Colorado. An employer can decide not to hire you for any reason except discrimination based on a protected class (race, religion, gender, disability, age, etc). Criminals are not a protected class. You have no valid discrimination claim based on being a convict.

You can reach Harkess & Salter LLC at (303) 531-5380 or info@Harkess-Salter.com. Stephen Harkess is an attorney licensed in the state and federal courts of Colorado. This answer is for general information only and does not create an attorney client relationship between Stephen Harkess or Harkess & Salter LLC and any person. You should schedule a consultation with an attorney to discuss the specifics of your legal issues.

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Asker

Posted

What I am reading is coming directly from the Equal Employment Opportunity Commission and the cracking down on employers abusing criminal background checks. And I am by far a "convict" just because I have a misdemeanor conviction. If you could please tell me the resources you getting your information from so that I could review them I would appreciate that. Also, if you could tell me what experience you have in this area if you are a bankruptcy attorney so that I can add validity to you response since I am finding information that is contradicting it that would help me to better understand what I am dealing with. Also, everyone has a right to work. It is a human right. So I am curious why I am unable to find a job because a 4 year old conviction on my record that is the only thing on my record when every other aspect of my life is thriving. I am a member of an international honors society, do great in school, stay out of trouble and this is the only thing holding me back. I would be more than happy to post links if I am able to any and all of the information that I have found regarding this that seems to say I am right.

Stephen Clark Harkess

Stephen Clark Harkess

Posted

Unlawful discrimination under Title VII requires discrimination based on a protected class. Criminal status is not a protected class. There are some EEOC guidelines that indicate that reliance on criminal records to deny employment has an adverse impact on black and Hispanic applicants. As a result, an argument may be made that such a policy is racially discriminatory. That would be the basis of a claim of racial discrimination. Race is a protected class. The opinion specifically indicates that the nature of the conviction and the job sought should be considered in determining whether there is a business necessity to review criminal backgrounds of applicants. You can certainly file a complaint with the EEOC and they will investigate and give you their opinion. If you are black or Hispanic, you might be able to make out a disparate impact claim of racial discrimination based on the EEOC guidelines. However, it's not easy to sue your way into a job. You are of course free to disregard everything I've said. Sometimes free advice is only worth what you paid for it.

Asker

Posted

Everything that you have stated above is correct. And the issue that I am having (race aside) is that the job I was denied for was a work from home position. I was a well qualified applicant and given the job but denied it due to my background. While I am not apart of a protected class, I am not sure that the circumstances proved to be a "business necessity" since I am qualified for the position, it has been 4 years since the conviction, it is the only crime of violence on my record, and I would be working from home away from co-workers, or vulnerable individuals. Therefore the unnecessary risk of hiring me is extremely low, to non-existent. So, I don't see how it is a business necessity. They are not required to do an individualized assessment to determine that risk, but may make them liable. Targeted Exclusion Without Individualized Assessment Is Not Job Related and Consistent with Business Necessity per the EEOC. I am also disabled, listed that information on the background check. However, I was not specifically asked if I have a disability, the information was provided. To clear things up a bit, I am not trying to "sue my way into a job" nor am I looking for any sort of compensation for being denied the job. However, as stated I have a right to work. And I am working hard to make a future for myself, earning a degree, obtaining honors, avoiding anything or anyone that may put me in a high risk situation that would get me in trouble again, time has passed since the conviction, and so on. Everyone needs to work. It is a necessity. And all I am trying to do is earn a living. And I am wrong for that? I deserve that because of unfortunate circumstances that lead to me getting a conviction for assault? No. I deserve the chance, and have a right to work in order to provide for myself and I am being denied that right. THAT is my issue. And because of it I have not been able to work for the last 4 years. I have worked with vocational rehabilitation services, and searched and applied for hundreds of jobs ranging from gas stations, grocery stores, fast food restaurants all the way up to jobs in the field I am studying and earning a degree in that pay an actual decent wage. And across the board I am unable to find a job. Something is seriously wrong here, and I am in desperate need of some help to resolve this issue so that I can get back to work and make living, pay my taxes, and be a productive member of society. Seeking legal help to try and make that happen is not wrong of me to do, nor am I a bad person. I am trying to do what is right. And have been doing so for quite some time. Am I seriously going to have to wait 7 years until I can find a job?! Where is the justice in that? Where is the rehabilitation in that? And why aren't my rights being protected?! According to Article 23 of the Universal Declaration of Human Rights: (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. (2) Everyone, without any discrimination, has the right to equal pay for equal work. (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. (4) Everyone has the right to form and to join trade unions for the protection of his interests. So THIS is where my problem is. And THIS is what needs to be changed. And THIS is what I am fighting for. For my right to work.

Asker

Posted

I would also like to add that I am not some loser who decided to be a bully beat the snot out of a girl to feel better about myself just because I have a DV conviction, and now can't get a job because it and wants to blame other people for my mistake, and try to sue somebody just to get something out of it because I did something wrong and can't take responsibility for my actions. And I get the feeling thats what you think is going on here. Correct me if I am wrong? But as I have made very clear, I am doing everything I can to change the circumstances that I am in and not being able to find a job is making it impossible to do so. I am forced to rely on SSI, and food stamps and because SSI is only $710 a month and in the Denver area you can't even find a studio for less that $400 I am in constant fear of becoming homeless, so I am left with no other choice but to find rooms for rent through Craigslist with sketchy people. I am also in need of medical and dental services that I can't pay for because I don't have a job. I am also in debt because I can't work. And up until recently had to rely on public transportation to get around, which is unreliable and takes 3 times longer to get you to where you need to be than having your own vehicle, and if you need to be somewhere on time and you leave in enough time to get there but have to connect to two or more busses, and one is late you are stuck waiting for the next bus that you need to connect with because you will miss the one you need making you late for where ever you are trying to get to. If I were working, I would be fired for being late because of the bus. On top of that I get looked down on and treated like crap because of the DV charge, and because I have to rely on government assistance to survive even though I want nothing more than to have a job and take care of myself and my responsibilities. This is taking away my dignity, health, housing, transportation, my pride, my security, everything. I have done an excellent job serving my sentence for my conviction, and was offered letters of recommendation from both my probation officer and my DV counsellor for how well I did. I completed my sentence early. I have paid my debt to society, and have a right to rebuild my life and after completing my sentence that should have been the end of it. But I will continue to pay for it for the rest of my life. And NOBODY cares about the circumstances of the conviction. They just look at me like I am a piece of dirt. I have a RIGHT to be treated fairly, and justly and with dignity. I have a right to work, and move on with my life. So if you are looking down on me in judgement calling me a "convict" to put me down and degrade me and you think I am just trying to manipulate the system, you are wrong for doing so. You do not know me, or what I have been through or what I am going through.

Stephen Clark Harkess

Stephen Clark Harkess

Posted

You are correct that I don't know you. I have nothing against you and I have no opinion regarding whether or not you would be a good employee or whether or not it was a smart decision for an employer to hire someone else instead of you. I simply answered your query about whether you had a valid court case. Under present law, you don't appear to. The Court system is limited in its ability to fix every problem or improve private business judgment. To the extent you are crusading for a change in the law or the adoption of the Universal Declaration of Human Rights as an American law that is enforceable in an American Court (it is not), your audience needs to be politicians, not lawyers or Courts. You need to contact your elected representatives. Good luck.

Asker

Posted

Well, I thank you for taking the time to discuss it with me. As I said what you had told is valid and has shed more light on the situation for me. If you know anything about the Rehabilitation for People with Criminal Records Act in Colorado that may be something that would benefit me should I qualify for it. Thanks again for taking the time to discuss this matter with me.

Posted

The EEOC has issued guidance regarding the proper use of criminal background checks. The short version is this: employers should not use an irrelevant criminal offense to deny employment. Employers may deny employment where the crime affects the work. For example, an employer may not deny a person a position on an assembly line because they have three speeding tickets, but may deny that person a job as a delivery driver. Your conviction is even more problematic because under every EEOC law, and employer is never required to offer a position to someone who is a threat to themselves or others. Your conviction for assault, even a domestic one, tends to show you are a threat to others and every employer has the right to maintain a safe work place. In addition, the EEOC guidance is not law and courts have been slow to adopt this interpretation in the first place. You would be better served by hiring lawyer to expunge or seal the DV conviction than to fight with potential employers. Here is a link to attorneys who do that type of work. www.duidefensematters.com Good luck.

Answering this quetion does not establish an attorney client relation. The answer is for educational purposes only. You should consult an attorney for your circumstances.

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