Don’t need answer fast, but I was discussing this with a friend the other day, and was curious, as I couldn’t find an answer in the Maine Revised Statutes. I’m interested in other states (or federal law) as well, but especially as it applies to Maine.
It’s my understanding that, if an individual receives a pardon for his crimes, it entitles him to check “no” to the relevant question on job applications, and should remove the offense from a criminal background check.
What if, however, the employer found out about the conviction from another source (e.g.: an article that showed up in a Google News search)? Is the employer legally allowed to discriminate based on that information?
That’s interesting, because I thought that a pardon doesn’t mean you’re not guilty, just that the pardoning official is letting you off. I would think that the conviction would still stand and be on your record.
Employers are well-advised not to ask for information about criminal records when hiring because of concerns that screening applicants out of hand based on criminal convictions might have a racially disparate impact, and some states (not Maine) limit what employers can ask about regarding convictions, but it’s not illegal to discriminate on the basis of a criminal conviction per se. As a result, it’s also not illegal to discriminate on the basis of a subsequent pardon.
Worse, accepting a pardon can be taken to be admission of guilt.
I haven’t heard of pardons in my country for a long time…
150 years ago, yeah they were pardoning people who massacred the indigenous population… I treat it about the same level … the USA politicians give pardons to reinforce ideas that the American dream ??? Its strange. “When I saw he voted Republican, I pardoned him”…
I’ve seen pardon request hearings. At every one the person requesting a pardon is required to allocute what exactly they did.
There was a Milwaukee police officer who was convicted in the early 80’s of manslaughter (or something like that. I forget what exactly it was) and he refused to admit he committed the crime he was asking a pardon for. The pardon board refused to recommend a pardon to the governor until he admitted he did the act. AFAIK he never did get a pardon.
I always found it Kafka-esque that to get a parole or early release (let alone pardon), usually wrongfully accused inmates had to admit to a crime they did not commit. Insisting on your innocence simply meant you spent more time in jail.
I guess the question would be if the employer denied the person’s application based on a criminal conviction they learned about through the news rather than a background check - why would they say so?
If you receive a pardon that expunges your record, then are you able to sue for libel or slander anyone who says or prints that you have a criminal record?
Can you discriminate against someone, refuse to hire them, because they were charged but acquitted of a crime?
There may be something. If you screen applicants based on arrest records, in the aggregate you may be racially discriminating. So an individual candidate who says s/he never even got an interview because of a question on an application about an arrest might have a case based on race even though you come right out and say that you were specifically discriminating based on arrest records, and even though criminal background is not a protected classification.
There is a reason it is called a pardon. It is forgiveness for a crime. Forgive not forget. Pardon implies guilt. If there is no guilt, there is no ground for forgiveness. It is executive privilege to grant a pardon. The governor (or president for federal crimes) has the power to give a pardon. Unless stipulated in state statute the convict does not have to elocute. In NJ he does not. It is possible that a pardon would be given because the governor believes in the innocence of the convict. It is part of his executive privilege so there are few statutory constraints. More likely though a wrongful conviction is appealed through the court. Pardons almost always go through the state parole board for a recommendation but I don’t see anything that prohibits the governor from doing it on his own. And he can certainly go against the recommendation. Pardons remain pretty rare.
Getting a pardon is a first step to getting your record expunged. Once pardoned the subject can then go in front of a judge and petition to get his record expunged. You do not have to get a pardon to get your record expunged. If you were arrested but not convicted you can apply. If you were convicted but never pardoned you can apply. But most likely your convictions have to be for minor crimes and some time ago. At that point it is up to a judge to decide to grant the expungement. The court then issues court orders to each local department where an arrest was made. Also to the State Police and FBI to remove records and fingerprints from databases. That last part is most important. If you were arrested in the next town on a traffic ticket, as a police officer I have no way of knowing it. Since contempt of court is not a serious enough crime to be fingerprinted that arrest will not show up in your criminal history report. With a few exceptions neither will any arrests for misdemeanors. Only felony arrests will show up on the law enforcement database of criminal history.
But of course there is no court order to remove your arrest from the newspaper or CNN or the internet. There is no law against someone picking a different candidate because of something they found on the internet.
In case anyone is wondering, on our police reports for subjects that were expunged the report remains but all biographical information is erased from all storage media. That includes an narrative accompanying the report. It is a time consuming job to ensure it is done correctly.
Yes, if I recall the questions you can ask a candidate for a job in Canada tend to be very limited. You can only ask if they have a criminal record, not if they have been arrested. You can also ask if they are bondable, if that is a job requirement.
Also, for example, you can’t ask about their family or children, because that would imply you could discriminate by marital status (“don’t hire the 25-year-old if she’s married, she’ll only go off to have kids”). Similarly, requiring a photo with the résumé would imply the possibility of racial profiling. And so on…
It appears the land of the free has less restrictions.
I don’t see how they can even expect a factual answer to that question on a form and be able to confirm that you lied when you filled it out. I have a friend that had a conviction for selling weed back in the 80’s expunged and he was told by the court that if anyone ask if you have been convicted of the crime that your answer was to be no. It’s the whole point of getting your record expunged. Heck, he even has quite a legal firearm collection now.
So hypothetically he would answer no on the application and they would have to prove that he lied. Now one thing that they may bring up is that it was in the newspaper. Hypothetically that could happen but few background checks go that far as to do newspaper checks because they would have to be able to prove that it was you in the newspaper report and not someone with the same name. Then it would depend on the details in the newspaper report, most of which are actually somewhat vague in that they don’t always give full names, addresses or age.
I grew up in a small county and there are actually three other people with my same first and last name living in the area and when I go back there I often hear about things like DUI’s or divorces that thee people have had and I just shake my head and say that must have been my evil twin.
But, yeah, if your crime was notorious enough that everyone in town knows you did it and there was no doubt that it was you then they can hold it against you no matter what your record says. In that cse you wouldn’t even make to getting the form to fill out.
Right. So my state one ups these people by automatically expunging the proceeding that expunged the criminal record. Therefore, if I am asked if I have had a criminal record expunged, then I can legally answer “no.”
Of course, companies will probably wise up to this and start asking “Have you ever had a proceeding for the expungement of a criminal record expunged?” At which point the state will likely expunge the expungement of the expungement, etc. and this dance will continue into eternity.
FWIW, here in Oregon, state law requires locksmiths to be able to (hypothetically) pass a 7-year criminal background check. They don’t actually run a background check, but that’s another story.
My point is it’s appropriate for a help wanted ad from a locksmith company to say “must be able to pass a criminal background check”. I’m sure there are other occupations as well where it’s not merely a case of employers being nosy but actually required for the job.
