What I wonder is how it works in practice…making up an only marginally absurd example, suppose I live in a small town in New Jersey and punch someone in public, say right there on the town common. The newspapers cover it…my neighbors, friends and enemies know about it…there’s a brief, public trial…but I plead down, and 10 years later my record is expunged.
So the newspaper articles still exist, and my neighbors, friends and enemies all know about it…but can they mention it? Say I’m running for state senate a year after expungement, can my opponent say “I have this article talking about the time he punched someone on the town square.” Can he get in trouble?
It means that, if asked “Have you ever been convicted of a crime?”, you can legally answer “no.” From the point of view of the legal system, your conviction doesn’t exist.
This doesn’t mean that no one can know about it, but it does allow you to take jobs where a conviction automatically disqualifies you.
That’s why you now see job applications saying things like "Have you ever been charged with a felony, rather than convicted of one.
As a matter of fact, off topic, I’ve noticed job applications now read, have you ever been fired from a job, asked to resign, or resigned a job within six months of disiplinary talks. I loved that form
They are covering their bases.
It’s funny 'cause I’ve had to look up cases in Cook County and sealed records and pardons and expungements are handled so many different ways. If you look hard enough you can usually find something, for instance, if the record expunged, you can find the case docket and then everything just goes away from that point, and the clerks won’t tell you anymore.
In Cook County I’ve looked up cases that say “record sealed,” other times it just vanishes.
I find this to be even worse, if something is there and you can’t find it, then you know it was covered up somehow, whether it’s correct or not, it leaves people guessing so they’ll guess against you.
Can you really ask if someone on a job application if they had been arrested, or charged with a felony?
Here in Canada, that’s a violation of their civil rights. Since the presumption is “innocent until proven guilty”, asking about an arrest or only charge violates your right to privacy, to be presumed innocent etc. The only legitimate questions are “Do you have a criminal record?” and “Are you bondable?” (if the job requires it).
In Canada, it depends on context, but I think you have the right idea. A question like, “Do you have a criminal record?” may work in an informal, verbal setting; but in print, as on an employment application, care must be taken. It is important to remember that one’s “record of offenses” is a protected ground under s. 5 of the the Ontario Human Rights Code, and exists also in similar Codes of other provinces. This means that you cannot discriminate against somebody simply because they have a record. The only acceptable wording that can be used on a job application is the following:
“Have you been convicted of an offense for which a pardon has not been granted?”
Notice that in order to answer Yes, the applicant must have been (a) convicted (that is, not just arrested, charged, out on bail pending a trial, etc.); and (b) not pardoned.
Canadian employment law overlaps with human rights codes to such an extent that it can seem difficult for an employer to get the whole picture of an applicant. I spend a lot of my time explaining to my American clients who are trying to staff their Canadian offices that a lot of what they want from an applicant simply cannot be obtained legally at the application stage. This represents a big difference from American practice, in which (if I understand things correctly) complete background checks involving all kinds of things–some totally unrelated to the job, even–can be done at the application stage.
Yeah, I recall a big long list of hiring do’s and don’ts.
You can’t ask marital status, kids, religion, age, etc. There’s some question whether you can even ask for a photo with the resume, since that betrays race and gender. The ultimate question always becomes “why did you need that?”
About the only legitimate questions that might give things away are “Here are the requirements of the job. Are there any reasons why you would not be able to perform them?” That might bring out daycare timing issues or religious holidays or medical issues or bondability or the inability to drive into the USA. Not being able to do the job is always a valid reason not to hire, provided the job requirments are legitimate.
(IIRC one railroad repair yard employer got nailed because they required workers to be able to lift a railroad wheel; this eliminated almost all women. An investigator found that workers never actually lifted a wheel as part of the job - it was always two workers carried it between them with a rod through the hole.)
So I’m curious about the ability in the USA to ask about things that are misleading.
I also recall TV shows (a great source of accurate information!) or other discussions of how a teen conviction can remove the chance to get into a good US college, the law bar, etc. - so do most employers down there look at charges or arrests, or just convictions?
Legally, just convictions. If you’re not convicted, you’re not guilty of any crime (as far as the legal system is concerned).
In the US, the question is usually “Have you ever been convicted of a felony or misdemeanor (not including traffic violations)?” An expungement means you can answer “no” to the question even though technically you were convicted.
Exactly. Employers can assess how well the applicant’s qualifications meet the job’s requirements, and that’s it. If it is a desk job, there is no need for a driver’s abstract. If it involves working with cash, a police check is a good idea. And so on. But such things can only be sought (generally speaking) at the post-interview stage.
Best case on point: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (link here), also known simply as “the Meiorin case.” It established the three-step test to determine the answer to the question, “How do you determine if a standard [such as the ability to lift a railcar wheel] constitutes a bona fide occupational requirement?”
In a primary election a campaign flyer was made that said an associate of an opposed candidate had been convicted of a drug offense and served time in jail. That conviction had later been expunged.
The appeals court ruled that this is not defamation because what was said was true and “the truth of the statement is an absolute defense to a claim of defamation.”
It also cites statutes in Oregon and California that explicitly state that expunged records are to be made available as evidence in defamation cases to confirm the truth of statements made about the expunged case (a similar case in Oregon where defamation charges by a politician charges were dismissed because, though expunged, the conviction had still happened and the truth is defense against defamation charges).
If you are applying for a security clearance in the US, you’ll be filling out the SF-86 (pdf) where you detail your background and personal history. Section 23, “Your Police Record”, states:
That section consists of the following yes/no questions:[ol]
[li]Have you ever been charged with or convicted of any felony offense? (Include those under Uniform Code of Military Justice)[/li][li]Have you ever been charged with or convicted of a firearms or explosives offense?[/li][li]Are there currently any charges pending against you for any criminal offense?[/li][li]Have you ever been charged with or convicted of any offense(s) related to alcohol or drugs?[/li][li]In the last 7 years, have you been subject to court martial or other disciplinary proceedings under the Uniform Code of Military Justice? (Include non-judicial, Captain’s mast, etc.)[/li][li]In the last 7 years, have you been arrested for, charged with, or convicted of any offense(s) not listed in response to a, b, c, d, or e above?[/li][/ol]You are then asked to explain any “yes” answers. It’s interesting to note that even being charged with something criminal warrants an explanation.
Now, the government is a hell of a lot more intrusive in many areas than a potential employer is permitted to be, and this is only one example out of many that spring to mind when reading through the form. But it sounds to me like even a “sealed” conviction must still be mentioned in this instance (unless it falls under that narrow-sounding exception).
