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  1. #1
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    Jun 2015
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    Default When to Disclose a Felony Record to a Prospective Employer

    My question involves labor and employment law for the state of: PA

    So I received an official offer letter for a great job at a major corporation in Philadelphia, PA. I'll be signing the offer tomorrow and sending a disclosure letter explaining the circumstances around my sex offense felony from when I was at university. Given PA employment law and the fact that I'm disclosing my felony prior to the background check, what can I expect? Will they certainly retract my offer or do I have a chance?

    For what it's worth, my conviction was eight years ago and I served three years of probation. Since then, I finished my masters degree at a top university and have had a successful career as a programmer in the private sector. Lost my job recently due to layoffs and am back on the market.

  2. #2
    Join Date
    Mar 2013
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    18,340

    Default Re: When to Disclose a Felony Record to a Prospective Employer

    Would have been better to have disclosed it on the application and attached a comprehensive explanation.

    Coming as an unpleasant surprise for a prospective employer after the job offer has already been tendered can only bode ill for you.

    What Pennsylvania employment laws are you referring to? Make sure you can cite a statute number when you reply.

  3. #3
    Join Date
    Jun 2006
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    Massachusetts
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    Default Re: When to Disclose a Felony Record to a Prospective Employer

    During the application and interview process, was there any question asked to which an honest and literal answer to the question would have revealed the felony?

    Example: Have you within the last seven years been convicted of... honest answer - no.

    Have you ever been convicted of...honest answer - yes.

    You are not required to volunteer the information. If you were not asked any questions, either on paper or in person, where answering honestly and literally would have revealed it, then you technically have not withheld anything. Can't carve anything in stone, of course, but that puts you in a much better position than the alternative.

    If there was something asked and you failed to disclose it, then when it shows up in the background check it's likely that you'll be kissing the job goodbye.

  4. #4
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    Jun 2015
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    8

    Default Re: When to Disclose a Felony Record to a Prospective Employer

    Quote Quoting adjusterjack
    View Post
    Would have been better to have disclosed it on the application and attached a comprehensive explanation.

    Coming as an unpleasant surprise for a prospective employer after the job offer has already been tendered can only bode ill for you.

    What Pennsylvania employment laws are you referring to? Make sure you can cite a statute number when you reply.
    Most white collar positions that I've applied for haven't involved an "applications"
    Here's how the process works: submit resume => phone screen => phone interview => skills assessment => in-person interview => job offer
    Even when I just do an online application, rarely have I seen the "criminal conviction" question.

    PA Law: Pennsylvania’s Criminal History Record Information Act (“CHRIA”)

    - - - Updated - - -

    Quote Quoting cbg
    View Post
    During the application and interview process, was there any question asked to which an honest and literal answer to the question would have revealed the felony?

    Example: Have you within the last seven years been convicted of... honest answer - no.

    Have you ever been convicted of...honest answer - yes.

    You are not required to volunteer the information. If you were not asked any questions, either on paper or in person, where answering honestly and literally would have revealed it, then you technically have not withheld anything. Can't carve anything in stone, of course, but that puts you in a much better position than the alternative.

    If there was something asked and you failed to disclose it, then when it shows up in the background check it's likely that you'll be kissing the job goodbye.

    Most white collar positions that I've applied for haven't involved an "applications"
    Here's how the process works: submit resume => phone screen => phone interview => skills assessment => in-person interview => job offer
    Even when I just do an online application, rarely have I seen the "criminal conviction" question.

    At no time was I asked on paper or in person about a criminal conviction.

    But I feel that I should still disclose it just after accepting the offer and prior to the background check

    - - - Updated - - -

    A couple months ago, I had a similar situation at a company in OH where I was never asked. However, they ran a background check after the offer and retracted my job offer. That's something I'd like to avoid, so at this time it seems appropriate to tell them.

  5. #5
    Join Date
    Jun 2015
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    8

    Default Re: When to Disclose a Felony Record to a Prospective Employer

    Update: I got the offer => accepted offer + told them I can't pass background check => background check => they asked me about felony => they said my offer was on hold until a background investigation => they came back and said that I'd passed

    I think it all goes back to the PA Criminal History Record Information Act.

    Now here is the problem. I'm concerned that once I start, they will immediate find something to fire me. Retribution. Are there any laws that protect from such action.

  6. #6
    Join Date
    Jun 2006
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    Massachusetts
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    Default Re: When to Disclose a Felony Record to a Prospective Employer

    Rest assured, if they really wanted to, they could have found a legal way to rescind the offer. And neither "retribution" nor what you probably meant to say, "retaliation" applies here even if they do fire you shortly after hire.

    If they actually do fire you and you have reason to believe it is illegal discrimination, there will be plenty of time to deal with it then. There's really no point to trying to figure out all the possible laws that might apply regarding a termination that hasn't happened.

  7. #7
    Join Date
    Jun 2015
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    988

    Default Re: When to Disclose a Felony Record to a Prospective Employer

    In my HR days I just hated it when I got a suprise ...much happier to sort out issues earlier ...one of my HR counterparts , now retired NAACP chapter president has stronger views about disparate impact of things that should not now matter...but do.
    Quote Quoting Laws Governing Criminal Record Inquiries in Employment
    Law Center staff attorney Benjamin Geffen published a memorandum as part of our Fair Employment Opportunities Project.

    DATE: JULY 25, 2014
    RE: LAWS GOVERNING CRIMINAL RECORD INQUIRIES IN EMPLOYMENT

    Introduction

    This memorandum provides a brief overview of key federal, state, and local laws protecting the rights of job applicants with criminal records. It is not meant to be exhaustive; rather, it is meant to alert the reader to the most important laws, as a starting point. Other valuable references include the EEOC’s 2012 Enforcement Guidance and a report of the Lawyers’ Committee for Civil Rights Under Law, Best Practice Standards: The Proper Use of Criminal Records in Hiring (2013).

    Title VII

    Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., restricts employers’ use of criminal records in making employment decisions (see EEOC Enforcement Guidance). Because discrimination on the basis of criminal record has a disparate impact on racial minorities, it can be a form of race discrimination under Title VII. If an employer’s policies or practices disproportionately screen out members of Title VII-protected groups, then a presumption of discrimination is created. Once this presumption has been created, the burden shifts to the employer to show that the policies or practices are not discriminatory. In order to avoid Title VII liability, the employer must overcome the presumption of discrimination by demonstrating that the policies or practices are job-related and consistent with business necessity. (The employer may demonstrate this business necessity in a number of ways.) According to the EEOC Enforcement Guidance, an employer may use a conviction record to make an adverse employment decision only if the conviction makes the employee unsuitable for the position in question.

    Fair Credit Reporting Act

    The Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681 et seq., places additional restrictions on how employers may use criminal record information obtained through background checks to make employment decisions. FCRA governs employers’ use of “consumer reports,” including background checks and criminal records. Before an employer runs a background check on a current or potential employee, the employer must give written notice that this information might be used for employment decision and obtain the employee’s written consent. Before an employer takes an adverse employment action based on information found in a background check, the employer must provide the employee with notice that it is considering making the decision, a copy of the report it relied on to make the decision, and a description of the employee’s rights under FCRA to dispute the accuracy of the information in the report with the reporting agency. 15 U.S.C. § 1681b(b)(3). This requirement ensures that the employee has a timely opportunity to review the information in the report for accuracy. If an employer then takes an adverse action based on information found in a background check, the employer must provide notice to the employee. 15 U.S.C. § 1681m(a).

    Criminal History Record Information Act

    In Pennsylvania, the Criminal History Record Information Act (CHRIA), 18 Pa. C.S. §§ 9101 et seq., further restricts how employers may consider criminal records in hiring. This law mandates that “felony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.” 18 Pa. C.S. § 9125(b). CHRIA also forbids employers from “denying employment on the basis of an arrest not resulting in a conviction.” Commonwealth v. D.M., 548 Pa. 131, 137 n.2, 695 A.2d 770, 773 n.2 (1997); accord Foxworth v. Pa. State Police, 228 F. App’x 151, 155 (3d Cir. 2007). This law also requires employers to notify an applicant in writing if the decision not to hire is based in whole or in part on the applicant’s criminal history.

    “Ban the Box” Ordinance

    In Philadelphia, the Fair Criminal Record Screening Standards Ordinance, Philadelphia Code §§ 9-3501 to -3507 (the “Ban the Box” Ordinance), restricts when and to what extent employers may inquire about applicants’ criminal records. This ordinance applies to all employers with ten or more employees in the city of Philadelphia except criminal justice agencies. On employment applications, employers are prohibited from inquiring about any convictions and about arrests or criminal accusations that are not then pending. Before and during the first interview, employers are still prohibited from inquiring about such convictions, arrests, and criminal accusations. If an employer does not conduct any interviews, the employer is not permitted to conduct any inquiries regarding criminal records. After the first interview, employers may not inquire about or make any adverse employment decision based on any arrest or criminal accusation which is not pending and which did not result in a conviction. After the first interview, employers may consider convictions to the limited extent allowed under Pennsylvania state law.

    For further information, please contact:
    Benjamin D. Geffen
    Staff Attorney
    Public Interest Law Center of Philadelphia
    1709 Benjamin Franklin Parkway, 2nd Floor
    Philadelphia, PA 19103
    267-546-1308
    bgeffen@pilcop.org[
    I missed your OK post....a busy HR staff has other things to do than plan
    retialations ....if you can do the job well....go so it well....keep your mouth SHUT about past...everyone has something less that perfect in past...just stay out of it!

  8. #8
    Join Date
    Dec 2009
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    Default Re: When to Disclose a Felony Record to a Prospective Employer

    He told them about his past. They hired him anyway.

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