72

To make a very long story short, I will summarize the cause of my issue. In 2005 I was charged with several felonies I did not do. In 2007, after a couple years of fighting in court, my lawyer and I decided the best thing to do was take a deal where I plead no contest to a non-violent misdemeanor and move on with my life. Throughout this entire period, I had kept the same job. My company was aware of my legal issues and kept me on. Unfortunately, the company eventually folded and I started to look for a new position.

I quickly found out that companies doing a background check saw both the felony charges that were dropped and the misdemeanor conviction. Of course, they didn't hire me. So I stopped applying to companies that do background checks.

I am once again looking for work in the IT field. In the IT field, many companies do background checks and it is really limiting my ability to look for work.

I know there are different types of background checks, but I have always heard that charges and misdemeanors drop off your record after 7 years. Would I be able to pass a simple criminal background check since it has been over 7 years?

Also, I know declining a background check raises suspicion, but is there a polite and non-suspicious way to decline a background check if they ask me to do one?

  • 26
    You should take the legal part to law.stackexchange. Or get a lawyer. Background check is not going to go away. There might be a way to get the record expunged or at least the felony charges. It is a reach and it would cost money but those charges on your record have a huge impact on you and not likely to go away. – paparazzo Aug 6 '15 at 16:52
  • 4
    I suspect I'm not alone in wondering, what were you accused of doing? – Jodrell Aug 10 '15 at 10:07
  • 25
    @Jodrell It is absolutely none of our business. – Jon Aug 10 '15 at 14:24
  • 13
    @Jodrell So, to get this straight—you want to know what the charges are so that you can make a judgment as to what the OP's options are. This is what potential employers are doing to the OP. It is exactly what the OP should be granted protection against under the law. Again, this is none of our business. The OP is not requesting our judgment against them based on the contents of their record. They are requesting a specific answer as to how long criminal background checks retain records, and how to effectively refuse a check on request. – Jon Aug 10 '15 at 15:31
  • 10
    @Jodrell Thanks for coming out and saying that directly. Also, gross. – Jon Aug 10 '15 at 17:58

12 Answers 12

117

Perhaps you should consider telling them of your prior convictions when they ask for a background check.

Hear me out.

The essence of a background check is for the company to know what type of character you are. In this case, you have a history, albeit one that is not necessarily the best when it comes to being a candidate for a position.

The key detail here, or lack thereof, is the fact that you decided - with your lawyer, that the best decision at that time was to plead no contest to the lesser of the charges. In effect, biting the bullet and moving on.

Your potential employer, when looking at your history, would not be knowledgeable of this decision you made in your past. It would be up to you to inform them of this.

I would recommend three things:

  • A signed letter from your lawyer describing the situation regarding your conviction and pleas.

  • Letter(s) of recommendation from community (non-family) members who
    would vouch for your work ethic and character

  • The willingness to come in (at your own dime) to explain your story
    to the hiring manager even if you would not be considered for a
    position.

  • 18
    @Mast I think that's true in the US as well, for the most part. Nobody is going to take your neighbor's recommendation too seriously. But if the OP has been volunteering at some local community organization for the past couple years, which had a leader who could vouch - it would probably be even more convincing than ex-employer's. – DoubleDouble Aug 6 '15 at 19:34
  • 4
    Can't get credit unless you have credit. Can't have credit unless you get credit. What to do if you can't get a letter of recommendation because you don't have a former employee - since the company he worked at before folded? – WernerCD Aug 6 '15 at 20:05
  • 4
    @WernerCD: volunteer somewhere. – NotMe Aug 6 '15 at 20:10
  • 99
    @WernerCD: he said the company folded, he didn't say everyone he worked for died. – Steve Jessop Aug 6 '15 at 23:34
  • 6
    When faced with a difficult part of your history to explain during a job application, it is always better to do your own explaining, rather than trying to hide it. When you explain your own situation, you can paint it in the best light possible (hiring a lawyer to write up a legal letter would be a good idea, as would references from community leaders that you've worked with), but when you try to hide it, they will find out, or they will find out you are hiding something, both of which are bad. – Zibbobz Aug 7 '15 at 1:19
81

is there a polite and non-suspicious way to decline a background check if they ask me to do one?

You can always decline a background check in a polite way ("I politely decline to give my permission for a background check"). Folks still may become suspicious.

Unfortunately, every company I know of that actually spends the time and money to perform background checks considers it mandatory, and would almost certainly drop you from consideration.

  • 17
    In my opinion, such that it is, this is the only truly correct answer to the actual question asked. – CGCampbell Aug 6 '15 at 17:12
  • 18
    This is the answer, and @Riorank's answer is what should be tried because of that. – DoubleDouble Aug 6 '15 at 19:39
  • 4
    @Lohoris just because you don't like it doesn't mean it's not the correct answer. If he doesn't want his background checked he should apply only for jobs that don't require a background check. It's that simple. If I were an HR department and a job applicant told me in whatever terms that he won't allow a background check that means that applicant won't get the job, period. – jwenting Aug 8 '15 at 14:42
  • 2
    @jwenting just because you like it, it doesn't mean it's the correct answer. – o0'. Aug 9 '15 at 16:25
  • 1
    @jwenting: If someone says they won't allow a background check, they might not get the job even if there was no plan to do a background check. – gnasher729 Sep 20 '17 at 19:30
50

Unfortunately if being upfront does not work I can only recommend:

Leave the USA.

Many countries in Europe and elsewhere have much stricter privacy laws (In fact, the USA is one of the worst offenders considering privacy, right on par with Russia and China with endemic surveillance). In Germany e.g. you do not need to mention your police record in the CV and you are only forced to answer truthfully if your conviction has a direct relation to the work (An accountant should answer truthfully if he was convicted for embezzlement). Moreover, firms have no access to your police record, they cannot force you being tested for drugs and they have all-in-all much less rights than in the USA.

I only mention that because the premise of your question is broken: You are in such a bad position that you cannot effectively stop background checks without losing any chance to get the job.

  • 9
    I was about to suggest the same thing. "Switch country" is definitely the right answer. After all, why stay in a country that is causing you so many troubles despite you were innocent? Of course, this is not for everyone, you might have family and friends… still, if you can, try to do it. – o0'. Aug 7 '15 at 8:10
  • 2
    @Prinsig: furthermore the usual procedure with CRB checks in the UK is not as simple as "aha, there's a conviction, no hire". That does happen, and there are certain convictions that would be an auto-reject for certain jobs, but what's supposed to happen is that the potential employer considers the details of the offence in relation to the role. I know someone who works in child protection in the CofE: there are cases where he'll recommend hire (perhaps with cautions) even in the presence of a relevant conviction and cases where he'll recommend no-hire even where there was no conviction. – Steve Jessop Aug 7 '15 at 11:06
  • 16
    This is actually not a very good suggestion. Most countries in Western Europe are going to ask about your criminal history when you apply for a visa. If you go to Central America or South America, you might have better luck but job prospects will be worse. – Douglas Held Aug 7 '15 at 11:19
  • 5
    @Lohoris He would need to obtain a work visa before working legally in another country. That visa application will at least require that he list criminal convictions, and may require a background check. Depending on the crime though, a misdemeanor might not prevent him getting the visa. – Ross Ridge Aug 7 '15 at 21:07
  • 5
    @reirab First: what kind of "counter-surveillance" ? Giving your background as programmer I take a guess about internet privacy (encryption, onion routing etc.). But the problem we are talking about is how much privacy has a person against a company and this is an important part of privacy overall; people may not feel it so much if their government spies on them, but they feel it in their daily work. Forced testing and compliance (Social network control) ? Check. Employee surveillance ? Check. No layoff-protection ? Check. Sensitive data (criminal record etc.) easily available ? Check. etc.etc – Thorsten S. Aug 8 '15 at 11:26
22

Like others have said, your records can be expunged. This would prevent a normal background check from even seeing these past offenses, and you would not be forced to declare them. (A Security Clearance will though, but that's a whole other can of worms.)

My advice is to declare loudly what occurred. This is what I did for my felony.

When asked, provide the dates, types, etc.. and then in the note section say something along the lines of "Was wrongly accused and took a plea bargain". Maybe something a little more professional sounding, but something that a reasonable person would read as "not an actual criminal". I mean, I probably did what I was accused of, at least to some extent. I simply write "Tried walking home drunk instead of driving, woke up in jail". That's all I remember.

But it makes you stand out, which in this market is more important than being perfect, and having your prior convictions listed on the application means they cannot reject you based on those convictions. The opposite is true though; If you do not list it on the application, and then they find it in the background check, that is grounds for not-hiring you.

When chatting with the HR corporate recruiter (whatever they are called), this came up in a positive manner, and I believe that honesty did help me in some small way get my current position.

Edit / Summary from responses:

I found this sweet wiki link that discusses the legality of hiring discrimination based on the applicants status as a felon (I'm a felon).

It looks like it is a current grey area; It is acknowledged by various (USA) states and courts as a type of person being discriminated against, but there no federal all-encompassing law that explicitly state that this kind of discrimination is illegal. That's news to me.

I stand by my advice, because anecdotally, it did work for me. I found a bunch of other non-authoritative links on the subject, that agree with me - basically being honest and taking control of the situation is going to play out a lot better than the employer finding this in a background check on their own.

  • 1
    "having it on the application means they can't not-hire you because of it" They can still decide not to hire you. They can determine that based on their customer base it is a risk they are not willing to take. – mhoran_psprep Aug 6 '15 at 17:11
  • 4
    @vulpineblazeyt: if it's illegal to not hire you based on prior convictions, then why are they allowed to access information on prior convictions as part of a background check? Constitutional bar on preventing them? After all, what possible effect could that information have other than (a) no effect at all; (b) they don't hire you because of the conviction? I'm perfectly happy to accept "the law is unenforceable and employers break it all the time, it's just impossible to prove" as an answer, if that's all there is to it... – Steve Jessop Aug 6 '15 at 18:00
  • 4
    To put it another way, it's a bit like having a law on the books banning employers discriminating on race, but then certain employers do a "race check" before hiring, in which they look at (among other things) your family tree for evidence of non-European ancestry, and don't hire people who "fail" this test. What possible conclusion can one draw, other than that they're rejecting people based on the information they gain in the check? – Steve Jessop Aug 6 '15 at 18:04
  • 2
    @Keltari I don't see how that conflicts with what SteveJessop said. Moreover, you are wrong about the significance of the wiki page, which is an unofficial list of federal protected classes. States are free to impose their own rules. Many states make it normally illegal to use arrest records, which would mean that only the misdemeanor could be used in OP's case; some states may also only let employers consider convictions if they're relevant to the job. – cpast Aug 6 '15 at 19:09
  • 2
    @cpast: well, I accepted, for the sake of writing my analogy, vulpine's assertion that it's illegal. And I ask why employers get away with routinely doing it. I see how that might at first glance appear to be an assertion that vulpine's assertion is correct. Anyway, Keltari's counter-claim certainly would resolve the apparent absurdity: "they can do it because it's legal everywhere". – Steve Jessop Aug 6 '15 at 23:28
10

I agree with @ThorstenS. and I think the only real solution to this problem is leave the country. That being said, I understand someone might not be willing (or able!) to do that, so I'll show you an alternative.

Start your own company

If you have your own company, nobody will do background checks on you: your customers will just either buy or not buy your product, not even knowing who you are, your clients will only care if you actually do ship them your product on time and if it works, they couldn't care less about your criminal record.

You might have problems finding funding, but in many IT areas the starting required investment is really low.

This, assuming you will be allowed to own a company with your criminal record. If you can't do even that, LEAVE THE COUNTRY.

  • 8
    Leaving the country "at once" is stupid advice. Most developed countries when approving a visa or citizenship, will hold a criminal record to a higher standard than employers when hiring. – Douglas Held Aug 7 '15 at 11:24
  • 2
    @DouglasHeld obviously you should consider the whole answer, and not a single sentence out-of-context. He could either leave the country or go freelance / start his own company. If it turns out he can't do the latter, obviously he should do the former! – o0'. Aug 7 '15 at 13:27
  • 3
    It is not a well-formed answer. Your advice to start a company is very good; but you both prepend and postpend this good advice with truly silly advice, in all caps. What possible good could come from leaving "at once", rather than a well thought out and carefully planned departure? – Douglas Held Aug 7 '15 at 14:19
  • The "at once" was an exaggeration, but I've removed it. I don't understand your concern: if you agree that starting his own company is a good idea, why don't you agree that if the state prevents him from doing so, he should leave? "assuming you will be allowed to own a company with your criminal record. If you can't do even that" – o0'. Aug 7 '15 at 14:26
  • I was in Germany 20 years before I applied for citizenship. Then they did a police background check. Not before. – RedSonja Aug 10 '15 at 13:46
6

I know there are different types of background checks, but I have always heard that charges and misdemeanors drop off your record after 7 years. Would I be able to pass a simple criminal background check since it has been over 7 years?

There is no "automatic" removal of any criminal records (misdemeanor or otherwise). You can attempt to have it expunged but there are a lot of factors that go into this and you still might not be able to do that.

If it's been this long your best bet is to hire a legal representative for two reasons. The first is to educate you on your current situation, rather than just listening to what some random people said.

The second would be to attempt to expunge your record. If you can get your record expunged then you'll be good to go.

Also, I know declining a background check raises suspicion, but is there a polite and non-suspicious way to decline a background check if they ask me to do one?

You can always say no to any request a company makes. However background checks are typically one of those hire/no hire items where simply declining it means automatic removal from consideration.

  • I am not a lawyer but my understanding is that charges as a minor come off your record. – paparazzo Aug 6 '15 at 16:29
  • 1
    @Frisbee: No. Generally criminal convictions as a minor can be sealed. This is still not automatic. Further when it is able to be sealed is still dependent on several other factors. More info: nolo.com/legal-encyclopedia/… – NotMe Aug 6 '15 at 16:32
  • 2
    @Frisbee IANAL either, but I am very positive nothing ever comes off your record. Minors (and adults) can have their record sealed. Sealing a record means the charges and convictions wont be shown, but the fact there is a sealed record means there were charges or convictions. That alone might be enough to deny employment. Also, sealed records can be opened. – Keltari Aug 6 '15 at 16:33
  • My understanding is records can get expunged but some companies don't keep their records updated, so it can still show up: blogs.wsj.com/briefly/2015/05/07/background This is problematic as multiple companies may be used, and if there's a hit for one of them, that's not going to look good. – Chan-Ho Suh Aug 6 '15 at 17:30
  • 3
    @Keltari If a record was sealed, then it legally does not exist except for certain uses. As in, the proper report isn't "the record is sealed," it's "there is no record." You may legally answer "no" if you're asked if you have convictions. The records can only be viewed in certain cases; if you're applying to be a cop it'll be shown, but for most jobs it will not be. – cpast Aug 6 '15 at 19:12
2

For most companies, background checks are mandatory and failure to agree to one may violate the terms of the employment contract you sign when you are hired. Unfortunately, criminal charges never disappear from you record. Even if they get expunged, they can still show up.

  • Its true. I know people with misdemeanor drug charges that still show up 15 years after the conviction. – Keltari Aug 6 '15 at 16:13
2

Be upfront about what they'll find in a background check and try to explain some of the circumstances (No longer wanted to fight in court.). Along with this, you're going to need to rely on business and personal references. Get all of these in line. It doesn't have to be a supervisor at your current job, but someone who will respond to an email or phone call request and be able to vouch for your good behavior.

Get permission and include a list of references with your CV. Most people might just indicate "References available upon request." type of thing, but you need to push it further. Strong references should help get you over the hump. Otherwise, you have to rely on someone taking a chance on a person with your history or you're going to have to dodge the background check.

1

Your question is "is there a polite and non-suspicious way to decline a background check if they ask me to do one?" and the short answer is no... if you decline a background check it will be assumed you are hiding something.

You also say "In 2005 I was charged with several felonies I did not do. In 2007, after a couple years of fighting in court, my lawyer and I decided the best thing to do was take a deal where I plead no contest to a non-violent misdemeanor and move on with my life." My instant reaction was "Yeah right, all criminals say they're innocent". Now I have no idea whether you did these crimes or not, but since so many people who are guilty deny guilt of their crimes it is likely that an interviewer, who is looking to make sure he/she doesn't make a bad hire, will be very put-off by any sort of denial of responsibility. Because this is a chance he/she doesn't want to take.

I personally would recommend just biting the bullet and saying you were young and stupid at the time and made some errors in life, and that you've learned from your mistakes etc etc. Regardless if you did these crimes or not. If they are drug offenses for example an interviewer might be understanding. In the other extreme, if they are nasty sex offenses then I think there's very little you can do (and it's very unlikely an interviewer would believe you're innocent.)

0

Consider doing a job search in a municipality with stronger laws protecting you from discrimination. Some states and cities have laws that limit what an employer can do with the information they find on a background check. Here are some recent examples, but I know there are more:

You should probably talk to a lawyer about what laws apply where you live.

I recently read about a bill, that I thought was federal, that would limit what misdemeanors and felonies could appear on a background check. The intention was to keep people with small offenses from having their lives ruined like has happened to you. I'm not a lawyer so that is all I know right now, but maybe that is something you can look into as well.

Also, the employer must tell you if the background check is why they didn't hire you. Although I suppose they could lie, which is why the New York City law requires them to extend you an offer before doing the background check.

Know about how expungement works in the location where your conviction applies. For example, in New Jersey, minors automatically have their criminal records expunged. But not so for adults.

0

Like so:

Thank you for the consideration, but I am no longer interested in pursuing this opportunity.

All the best.

0

Standard disclaimer: I am an IT worker who has been involved in hiring processes (from both sides of the table), and not a lawyer. A legal advice forum would be a better venue for this question.

Often a company will ask you, before the background check, if you have ever been convicted of a crime, and give you an opportunity to provide an explanation for that. When they are performing a background check they are often just checking that the background check matches up with what information you volunteered - the red flag is less that you have a criminal history and more that you lied about it.

Of course having a criminal history is in and of itself a red flag to some, but with sufficient explanation that can appease the person in HR who is reviewing it.

However, this does depend greatly on the nature of the position; convictions can, for example, exclude you from any position where you might have a government contract to work on or where you'll be directly involved in financial transactions.

One thing you could do is to get a letter drafted by your lawyer regarding the particulars of the situation and attach it to your application. On the "have you ever been convicted of a crime?" question you can then provide, "Yes, see attached."

Another possibility is to get hired on as a contractor, either directly or via a staffing agency. Many companies only run background checks for full-time employees, with the expectation that the staffing agency vets their consultants on the clients' behalves.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.