Sunday, March 17, 2013

Being Able to Explain Your New York Past on Applications for Jobs, Employment, Licenses, and Certifications

Criminal Background checks are becoming the norm,

I get calls about how to answer questions on job applications, teacher certifications, license renewals (and new applications), and even lease agreements. Sometimes it seems as if everyone wants to know about your
Past to get or to have just about anything. All of your life history and baggage, from a DWAI, to a shoplifting charge, to a marijuana violation you got in College threaten to derail your chances at an apartment or an internship or a new job. Read on to discover how to NOT allow the Past AFFECT Your Future.

What's the Law? Federal Law vs. State Law

People want to know what people can "legally" ask about your criminal history. Federal law states "arrest and conviction" information are OK to ask about. This includes even those arrested, and then found not guilty. Employers are supposed to allow you an opportunity to explain to them about your past behavior, and to not hold it against you unfairly. They must consider three things:

1. the nature and gravity of the offense,
2. the time that has past since the offense, and
3. the nature of the job/position/work you are applying for.

Obviously a convicted sex offender (or even someone with multiple allegations ie. arrests for sexual deviancy) would not be a great job applicant for a daycare center nor a habitual DWI offender for a school bus driver position.

New York State Law further limits (Federal Law) employers from asking about:

1. Sealed Violations (all violation level offenses except three)
2. All Arrests
3. Non Criminal Convictions
4. Adjudicated Convictions (vacated by a Judge for those less than 19 Years old and qualify)

In New York State, employers can ONLY ASK about criminal convictions (misdemeanors and felonies), and they cannot legally hold them against you. Depending upon the state you are applying in, they might allow more or less than New York. For example, California allows employers to ask about arrest history.

Aren't We In The Information Age?

What is truly confidential anymore? Fears of terrorism, child abduction, corporate scandal, fiduciary abuses, and inflated resumes have increased the use of background checks. Even from the standpoint of negligent hire, any corporation wants to limit their exposure to potential lawsuits via inexpensive Pre-Employment Screenings and vigorous inquiry.

The internet, globalization, and social media have turned the private parts of your life upside down and inside out. Everything is now fair game.

A Defense Lawyer's Perspective on Background Checks

I believe that Every New York criminal case involves looking at and resolving the past, the present, and the future. There is always something you did (the history), always something you are currently facing (the charges), and always something in your future (the mystery) that might need something.

Past guilt and future fear can lock you in place. Not knowing is maybe worse then just doing the necessary work (and cost) associated with dealing and preparing properly. You will eventually be moving forward and onward with your life.

Do any of your events (offenses, convictions, violations) need CONTEXT? There will eventually be a time and place for explanation.

What's In YOUR Record?  from

The Dangers of Loose Ends and Lack of Context

I recently had a teacher call me with a 20 year old DWAI (non-criminal) conviction found on her FBI background check. She was fired (after being hired) for lying on her employment application. Add to this the embarrassment and humiliation of having to explain her firing to all her students and their parents.  They probably assumed she was some level 3 sex offender or something. I guess the Human Resource person did not know that a New York DWAI was NOT a crime, and that she in FACT had no criminal convictions.

They had asked on her application about prior drug, alcohol, and/or sex convictions. The KEY word here is "CONVICTIONS." This requires a clear definition. To assist her honesty in answering, they also gave her three example situations of what they considered to be "convictions" with all examples being clearly "criminal" misdemeanors.

So she answered truthfully, NO I have NO convictions based upon your definitions. In New York a DWAI i a traffic violation, a non-criminal offense, certainly NOT a conviction. Her FBI background check showed the original charges of DWI but also the reduced traffic offense of Operating While Ability Impaired.

The FBI record had NO offense level area or key or delineation between the criminal DWI charge, and the non-criminal DWAI conviction. So she was labeled by human resources and the board of education of that county as a liar, and criminal all in one fell swoop.


First, have an attorney do the best they can to reduce, resolve, and consolidate your criminal charges. Can some be dismissed? Can some be downgraded? Remember New York State offenses have three levels: violation, misdemeanor, and felony. Even within the levels are more degrees, like aggravated or 2nd, 3rd, or 4th, etc. In this context more (higher) is less caustic and potentially troubling.

Second, get a copy of your Certificate of Disposition. This will show and document the actual original charged offenses, and final convicted offenses. It will also nicely KEY: V = Violation (non-criminal) from M = Misdemeanor. Always helpful to have a key.

Third, is this document accurate? and/or Does it require an attorney to provide a legal explanation to an employer and/or future employer and/or license/certifying board? You should be aware that only a handful of states have violation level DW or DU charges, so they are in the minority. It would probably be best to prepared to explain your outcome in the future.

Fourth, Will an old DWI or any drug related charge require your producing an drug/alcohol evaluation or assessment. A document (report) that shows or explains a prior diagnosis and/or prognosis and whether treatment was warranted.

Fifth, Social Media, like Facebook, Twitter, Linked, etc. may expose your private life to public scrutiny. Is there anything (photos, videos, posts) online that may reflect badly upon your character, your honesty, your maturity, and/or your responsibility? Remove them if possible.

Remember that the nature of the game in giving a job, certification, license, or position is:

No organization or State/Government Body or licensing board wants to take on or assume any unnecessary risk or liability. They have much to lose and nothing to gain by going out on a limb for people with unexplained "criminal" histories or behavior patterns. Be prepared to allay anyone's fears, with the needed documentation, and a clear concise explanation.

Lawrence (Larry) Newman

Doctor of Chiropractic
Attorney and Counselor at Law