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What Happens if You Don't Disclose a Misdemeanor When Applying for a Job

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  • 07-25-2015, 10:38 AM
    JMH
    What Happens if You Don't Disclose a Misdemeanor When Applying for a Job
    My question involves labor and employment law for the state of: California

    So basically I got a job offer and I am required to fill out paperwork. They are going to be doing an investigative consumer report for me which says may contain criminal records.

    I paid like $30 for a criminal background check on myself and 0 criminal public records were found, yet I have heard these can be inaccurate.

    I have to fill out a job application and it specifcally asks if I have "ever" been convicted of a criminal offense. It goes on further by saying that I don't need to list convictions that have been sealed, expunged, dismissed or otherwise eradicated by a statue or court order. The problem I am having is the eradicated by a statue or court order part because I know California in particular has a statue that misdemeanors that are 7 years old are removed or "eradicated" from public records.

    I have two misdemeanors, but one was dimissed by an offical court ordered dismissal about 5 years ago so I do not have to legally list that. The other one is a very minor charge that occured 8 or 9 years ago. I currently have a law firm working with me who are in the process of dismissing that particular misdemeanor. However, my question is, since it is so old, do I still have to list it or am I getting the eradicated by a statue wording confused with something else? In addition, this law firm says they have had people who haven't listed certain things and when questioned by an employer, the law firm wrote them a letter explaining that this charge was in the process of being dismissed or expunged.

    What exactly do I do?

    The charge is pretty dumb so if I list it I don't think my employer would mind, however, I do not want to list something that isn't even on my record on the first place or something that I shouldn't be listing because of a law.
  • 07-25-2015, 11:35 AM
    eerelations
    Re: Job Application Wordage
    Unless the application says something about only listing misdemeanors that are less than eight years old and/or are being looked at for possible dismissal, then it would be wise to list this misdemeanor. That is if you want to be honest and/or don't want to be fired for lying sometime in the future.

    (Note: law firms don't dismiss records, law firms ask judges if they will be so kind as to dismiss certain records.)
  • 07-25-2015, 11:41 AM
    JMH
    Re: Job Application Wordage
    Well also I found this when I did some digging:

    Section 7287.4. Employee Selection.

    (1) Criminal Records. Except as otherwise provided by law (e.g., 12 U.S.C. 1829; Labor Code Section 432.7), it is unlawful for an employer or other covered entity to inquire or seek information regarding any applicant concerning:
    (A) Any arrest or detention which did not result in conviction;
    (B) Any conviction for which the record has been judicially ordered sealed, expunged, or
    statutorily eradicated (e.g., juvenile offense records sealed pursuant to Welfare and Institutions Code Section 389 and Penal Code Sections 851.7 or 1203.45); any misdemeanor conviction for which probation has been successfully completed or otherwise discharged and the case has been judicially dismissed pursuant to Penal Code Section 1203.4; or
    (C) Any arrest for which a pretrial diversion program has been successfully completed pursuant to Penal Code Sections 1000.5 and 1001.5.

    Legally speaking, an employer cannot ask about a misdemeanor conviction where I have completed probation. In addition, the term "judicially dissmissed" keeps coming up and I do not know what that means.

    In addition, I know that they can't dimiss records, but they are filing for the dismissal and going to court on my behalf. I would do it myself, but I would have to go to court an hour away and I am unable to take off any time from work.
  • 07-25-2015, 11:47 AM
    adjusterjack
    Re: Job Application Wordage
    If the postings on this and other legal websites are any indication there will always be remnants of your record somewhere and it will always turn up when it can do you the most harm.

    The answer to "Have you ever?" is "Yes - see attached" and then attach an explanation.

    Employers would rather see that than find you lied on the application and fire you later because they can't trust you.
  • 07-25-2015, 12:04 PM
    Taxing Matters
    Re: Job Application Wordage
    Quote:

    Quoting JMH
    View Post
    Well also I found this when I did some digging:

    In addition, the term "judicially dissmissed" keeps coming up and I do not know what that means.

    Judically dismissed means that a court has entered a judgment dismissing the charges. As it relates to the statute you cited, it requires that the charges be dismissed pursuant to Penal Code (PC) section 1203.4. If you qualify for it, you must petition the court to set aside the conviction and enter an order of dismissal as provided in PC § 1203.4. I'd advise using an attorney for this.

    As I recall California has a statute that prohibits misdemeanor convictions from showing up on consumer reports after 7 years. That is not a dismissal or eradication of the conviction.
  • 07-25-2015, 12:14 PM
    JMH
    Re: Job Application Wordage
    Well, I do not have to list the charge that was dismissed right?

    - - - Updated - - -

    Quote:

    Quoting Taxing Matters
    View Post
    Judically dismissed means that a court has entered a judgment dismissing the charges. As it relates to the statute you cited, it requires that the charges be dismissed pursuant to Penal Code (PC) section 1203.4. If you qualify for it, you must petition the court to set aside the conviction and enter an order of dismissal as provided in PC § 1203.4. I'd advise using an attorney for this.

    As I recall California has a statute that prohibits misdemeanor convictions from showing up on consumer reports after 7 years. That is not a dismissal or eradication of the conviction.

    Also does that CA statute have anything do to with the phrase: eradicated by statute?
  • 07-25-2015, 12:57 PM
    eerelations
    Re: Job Application Wordage
    Quote:

    Quoting JMH
    View Post
    Well also I found this when I did some digging:

    Section 7287.4. Employee Selection.

    (1) Criminal Records. Except as otherwise provided by law (e.g., 12 U.S.C. 1829; Labor Code Section 432.7), it is unlawful for an employer or other covered entity to inquire or seek information regarding any applicant concerning:
    (A) Any arrest or detention which did not result in conviction;
    (B) Any conviction for which the record has been judicially ordered sealed, expunged, or
    statutorily eradicated (e.g., juvenile offense records sealed pursuant to Welfare and Institutions Code Section 389 and Penal Code Sections 851.7 or 1203.45); any misdemeanor conviction for which probation has been successfully completed or otherwise discharged and the case has been judicially dismissed pursuant to Penal Code Section 1203.4; or
    (C) Any arrest for which a pretrial diversion program has been successfully completed pursuant to Penal Code Sections 1000.5 and 1001.5.

    Legally speaking, an employer cannot ask about a misdemeanor conviction where I have completed probation. In addition, the term "judicially dissmissed" keeps coming up and I do not know what that means.

    In addition, I know that they can't dimiss records, but they are filing for the dismissal and going to court on my behalf. I would do it myself, but I would have to go to court an hour away and I am unable to take off any time from work.

    No, the law you have quoted does not say employers cannot ask about misdemeanor convictions where probation has been completed. The law you have quoted says employers cannot ask about misdemeanor convictions where probation has been completed and the case has been judicially dismissed.

    Your misdemeanor conviction has not been judicially dismissed (which means BTW dismissed by a judge). Your misdemeanor conviction may be judicially dismissed at some time in the future but as of right now, it has not been judicially dismissed. This means that your employer has the legal right to ask you about it, the legal right to expect a truthful response from you about it, and the legal right to fire you should you not provide a truthful answer.
  • 07-27-2015, 03:07 PM
    JMH
    Re: Job Application Wordage
    Man I would be really upset if they retracted their job offer because of a misdemeanor. I am going to list it and explain why, but I have a feeling they might retract the offer :(

    - - - Updated - - -

    So I got a lot more information regarding the misdemeanor charge.

    The charge is from 2006 which makes it roughly 9 years old.

    The official charge is Appropriation of lost property.

    I ordered a background check from a local agency- the same agency that my employer will use to conduct a background check on me. I will have the results tomorrow, but if the charge doesn't come up, do I list it or not list it.

    In the chance that I list it on the job application, I have already typed up a statement explaining the situation.
  • 07-27-2015, 03:51 PM
    eerelations
    Re: Job Application Wordage
    Again, unless the application says something about only listing misdemeanors that are less than eight years old, you need to report it if you want to be honest about it. Even if the background check you ordered doesn't show it. Not all background checks are the same. Your employer may have ordered a more in-depth background check than you did, or your employer may have ordered a background check from more than one agency. Or whatever.

    Bottom line is, if you don't report this misdemeanor and your employer finds out about it (through any means, not just a background check), your employer is legally free to withdraw your job offer/fire you for not reporting it.
  • 07-27-2015, 04:38 PM
    bam!
    Re: Job Application Wordage
    Third party consumer investigation companies are bound by the fcra. Convictions can be generally reported "forever"

    What company are they using? What kind of company are you applying to?

    "Generally" speaking most companies who use third party companies abide by the "7 year" limit for negative information just to stay uniform across the country.
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