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Job Application After Being Charged with a Felony

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  • 04-08-2009, 08:41 AM
    catness3641
    Job Application After Being Charged with a Felony
    My question involves labor and employment law for the state of: Massachusetts
    I just saw this on an online application for a local grocery store chain. "Have you ever been convicted of or charged with a felony or misdemeanor?" I'm used to seeing the word convicted but "charged" seems very unusual to me.
    This is legal?
  • 04-08-2009, 08:43 AM
    LawResearcherMissy
    Re: Charged with a Felony Job Application
    Yes, it's perfectly legal.

    Don't lie. If you're hired, and your background check later shows a charge, you can be terminated.
  • 04-08-2009, 08:53 AM
    BOR
    Re: Charged with a Felony Job Application
    Quote:

    Quoting catness3641
    View Post
    My question involves labor and employment law for the state of: Massachusetts
    I just saw this on an online application for a local grocery store chain. "Have you ever been convicted of or charged with a felony or misdemeanor?" I'm used to seeing the word convicted but "charged" seems very unusual to me.
    This is legal?


    I believe EEOC guidelines forbid asking an applicant if they have ever been "arrested"?

    This link seems to support that.

    Arrests.
    As a general rule, employers are not permitted to ask candidates "Have you ever been arrested?" Many arrests do not result in convictions, and inquiries concerning arrests can be perceived as biased against particular minority groups


    http://www.sideroad.com/Human_Resour...questions.html

    Here the "operative" word is "charged". IMO, this is an illegal question unless the case law bears it out to some degree.

    When you are "arrested" you are "charged".
  • 04-08-2009, 08:59 AM
    Mr. Knowitall
    Re: Charged with a Felony Job Application
    It is possible to be arrested but not charged, although most people who are arrested do end up being charged with something.
  • 04-08-2009, 09:05 AM
    BOR
    Re: Charged with a Felony Job Application
    Quote:

    Quoting Mr. Knowitall
    View Post
    It is possible to be arrested but not charged, although most people who are arrested do end up being charged with something.


    I assume you are speaking of probably being "formally" charged, such as in an Indictment/ information/citation.

    If you are arrested and taken into custody, it was under authority of probable cause.


    IMO, simply because you may be released before you post bail or see a judge, it does not negate the fact you were charged with a crime.

    This question of "charged", it seems to me, is splitting a very fine hair?
  • 04-08-2009, 02:23 PM
    mlane58
    Re: Charged with a Felony Job Application
    Quote:

    Quoting BOR
    View Post
    I believe EEOC guidelines forbid asking an applicant if they have ever been "arrested"?

    This link seems to support that.

    Arrests.
    As a general rule, employers are not permitted to ask candidates "Have you ever been arrested?" Many arrests do not result in convictions, and inquiries concerning arrests can be perceived as biased against particular minority groups


    http://www.sideroad.com/Human_Resour...questions.html

    Here the "operative" word is "charged". IMO, this is an illegal question unless the case law bears it out to some degree.

    When you are "arrested" you are "charged".

    The EEOC does not bar asking those questions. They do state if an employer chooses to collect arrest or conviction information, it must do so consistently. When an employer asks employees or applicants about their arrest or conviction history, the EEOC suggests that it assures applicants and employees that honestly providing such history will not automatically disqualify them from consideration for the position.
  • 04-08-2009, 02:48 PM
    cbg
    Re: Job Application After Being Charged with a Felony
    When an employer asks employees or applicants about their arrest or conviction history, the EEOC suggests that it assures applicants and employees that honestly providing such history will not automatically disqualify them from consideration for the position.

    And Massachusetts law requires that an employer provide that assurance.
  • 04-08-2009, 04:22 PM
    BOR
    Re: Charged with a Felony Job Application
    Quote:

    Quoting mlane58
    View Post
    The EEOC does not bar asking those questions. They do state if an employer chooses to collect arrest or conviction information, it must do so consistently. When an employer asks employees or applicants about their arrest or conviction history, the EEOC suggests that it assures applicants and employees that honestly providing such history will not automatically disqualify them from consideration for the position.


    We seem to have conflicting statements then. Here is another link:

    The EEOC also states that employers should not ask applicants about arrests which have not lead to convictions, since such questions may have a “chilling effect” upon minorities and discourage them from applying for a job.

    This does not prohibit employers from learning about these arrests from court records.




    http://www.dealersinsurance.com/use_...decisions.html
  • 04-08-2009, 05:57 PM
    cbg
    Re: Job Application After Being Charged with a Felony
    "Should not ask" and "are prohibited from asking" are not the same thing.

    "Should not ask" suggests that it is discouraged but not prohibited.
  • 04-09-2009, 11:08 AM
    BOR
    Re: Job Application After Being Charged with a Felony
    Every site I have checked is either strongly against it or the fine line is so questionable they do not wish to risk asking.


    Research Notes -- Arrest Records in Employment


    The Equal Employment Opportunity Commission’s position is that an employer is precluded by Title VII of the Civil Rights Act of 1964 from asking a potential employee about arrest records. The rationale behind this position is that arrests do not prove guilt and that screening out applicants with arrest records has an adverse impact on minorities. See Fair Employment Practices Manual; EEOC Guide to Pre-Employment Inquires, Lab. Rel. Rep. BNA, No. 695 at 443:67 (1995).

    Although no federal statute prohibits an employer from asking about a prospective employee’s arrest record, forty-one states restrict or prohibit employers’ inquiries about this subject.




    http://counsel.cua.edu/employment/qu...st_Records.cfm


    Note, this Attorney uses the word "precluded"!


    Federal law itself, an act of Congress, may not prohibit it, but EEOC guidelines seem to prohibit it.
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