I was offered a job contingent on the background check, Needless to say I gave notice at my current job. So I received a call from my potential new job informing me that they found a DUI on my record from 10yrs ago and that since I didn't disclose it they will need to rescind their offer. Can they do this? Also the position that I was hired for is not a driving job its a clerical position.
They asked you "were you ever convicted ..." and you said "No", knowing that you had a DUI? I doubt they'd care about your DUI from 10 years ago had you disclosed it. The problem is that they caught you lying now
My attitude as your prospective employer is, if you are going to lie to me about a DUI from 10 years ago that I wouldn't care about if you had disclosed it to me, why wouldn't you lie to me about stuff that's much more important to me today?
From your question "Can they do this?", I am getting the impression that the only thing you regret is that you got caught. I don't know too many employers who'd want to hire employees with this mindset.
Having said that, look to see if you can have your DUI from 10 years ago expunged. If you honestly forgot about it, then say so to your prospective employer, apologize profusely, say that you had put the episode behind you, that you haven't been in trouble since, say that the result of the background check came as a shock to you and say that in view of the result of the background check, that you are now looking into the possibility of having your DUI expunged. Finish your communication by apologizing for needlessly, although unwittingly, creating a credibility issue where there was none. Say that you were wrong about the DUI when you answered, but you did NOT lie about it because you plain forgot.
Your apology may not work in the sense that your prospective employer has ironclad background check procedures that make no exception or provide room for appeal, but I believe that it is important that you explain yourself for the record and establish with them a level of credibility as regards to your integrity and that you build yourself up some good will. Who knows? You may apply again at some point in time in the future when you have made sure, if possible, that your DUI has been expunged but this time you'll be able to claim a clean slate.
They probably would not have minded the DUI, since it is not a driving position and it was quite some time ago.
What they object to ia that you hid it. It indicates to them (and I would agree) that you are dishonest, and therefore cannot be trusted.
Lying may not seem like much, since it causes no direct harm and is "only words," but (at least to me) it indicates that you may be willing to commit almost any other crime or malfeasance, as you have shown a deceptive nature.
A reputation takes a lifetime to build and a moment to destroy.
As far as whether or not they're "allowed to:". I am not a lawyer, but I am aware of a great deal of (U.S.) case law that will back their position.
You should never believe anything is too old to still be on your record, or that it has been fully expunged. Just 2 days ago a social worker doing background checks on our foster parenting license showed me my record. My speeding ticket from 2004 was still there.
The safe bet is to wait for the background check to clear.
Where it gets tough is when they expect you to start before the background check is clear. In that case just be sure you are squeaky clean. I was on a contract job for 2 years and the security check took 2 years (I passed) - my badge went from temp to contractor. It was a 2 year contract. I literally turned in the contractor badge the same week I got it.
Did you lie? If the job application only asked have you ever been convicted of a felony then you did not lie. If it asked have you ever been convicted of a misdemeanor then yes you lied (if the DUI was considered misdemeanor). If it asked have you ever been arrested then yes you did lie (unless you somehow got a DUI without an arrest). Have you ever been arrested seems like it is not fair as the case can be dismissed but it was still an arrest.
If the judge said case closed and thought that was the same as case dismissed that is an honest but stupid mistake. I doubt you would have turned in notice if you had known a misdemeanor DUI was on your record. You see wealthy people spend a lot of money to get charges reduced to keep stuff off their record.
A friend of my not only accepted a new job but got fired after she started for a DUI years ago (also not a driving position). She said but you did not ask and they agreed. When they went to put her on professional insurance it came up from the insurance provider. It is not always fair.