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Colorado Criminal Background Checks – Caution Ahead – Why Pleading Guilty Could Cost You Your Future – Understanding why Colorado employers run criminal history checks on possible future hires drives home the need to make certain a person accused of a crime does not “take” a conviction without the absolute need to do so.
If you have been charged with a crime there are many things you need to think about before deciding whether to plead guilty or take your case to trial. A criminal conviction, even for a misdemeanor or petty offense, can have lifelong consequences well beyond the sentence imposed by a judge. The things that can happen to your future are called direct and collateral consequences.
The short answer to the question – “Are There Restrictions On Hiring Decisions Based On Negative Criminal Records?” is …practically none.
Private employers making hiring decisions have almost no restrictions on hiring decisions involving negative criminal histories. While Title VII of the Civil Rights Act of 1964 purports to impose discrimination based “blanket exclusions” on refusing to employ anyone with a prior arrest or conviction, the Act is practically impossible to enforce.
In April of 2012, the U.S. Equal Employment Opportunity Commission issued the following guideline regarding the use of arrest and conviction records in making hiring decisions:
If an employer uses a negative entry on a criminal history in that employer’s hiring decision – the employer is supposed to consider:
(1) the nature and gravity of the offense or offenses;
(2) the time that has passed since the conviction and/or completion of the sentence; and
(3) the nature of the job held at present (as in promotion) or sought.
While that sounds logical – employers have many ways around the “loose” guidelines that were intended to assist them in their decisions. The reality is the private employer can employ anyone that employer wishes to hire ot not to hire.
There is NO Colorado law that prohibits discrimination in hiring decisions by private employers that are based on an applicant’s criminal history.
Colorado is also known as an “at will” state. That means employment can typically be terminated for essentially any reason. Professionals who are licensed in Colorado who may still be eligible to practice that profession with their existing criminal record may still be unable to locate an employer willing to hire that person with his or her criminal history.
It may seem unfair to reject individuals who are fully capable and qualified to perform a specific job…. but certain lawsuits – civil suits against employers known as a suit for Negligent Hiring – are very real and an understanding of these suits may help the rejected individual understand the risk an employer has if that employer hires a person who causes an injury while on the job.
In it’s most reduced form – a law suit for negligent hiring and supervision claims that employers are liable for injuries caused by an employee when the employer knew or should have known of the employee’s tendency to commit the behavior that caused the injury.
[L]iability of the employer is predicated on the employer’s antecedent ability to recognize a potential employee’s “attribute[s] of character or prior conduct” which would create an undue risk of harm to those with whom the employee came in contact in executing his employment responsibilities
The tort (civil lawsuit) for a negligent hire, supervision, and/ or retention of an individual most often (it can vary state to state) requires the plaintiff to prove the following elements:
(1) the existence of an employment relationship;
(2) the employee’s incompetence;
(3) the employer’s actual or constructive knowledge of such incompetence;
(4) the employee’s act or omission causing the plaintiffs injuries; and
(5) the employer’s negligence in hiring or retaining [or supervising, etc.] the employee as the proximate cause of plaintiffs injuries.
While Colorado law is evolving in this area, the rules in Colorado are similar. The use of a criminal history to “vet” a candidate before hiring that candidate should be closely tied to the duties the employee is expected to perform if they were hired.
In one Colorado case (involving a trucking company) the Colorado Supreme Court held that an employer did not have a duty to review the employee’s criminal history because the company could not foresee that the employee would create a risk to the public. But, while there was no duty to “conduct an independent investigation into [the employee’s] non-vehicular criminal background in order to protect a member of the public,” the Court did not foreclose the responsibility of an employer’s “to investigate the criminal records of potential employees in other circumstances.”
A concurring opinion in that same case noted that employers should make “individualized assessments” in determining whether to obtain criminal histories based on “the employee’s duties and the extent of special access to vulnerable persons or valuable property” that the individual will be exposed to in performing the job.
If you are applying for a position where you will interact frequently with the public or perhaps you will handle valuable property, it is much more likely that the employer will use your criminal history to “vet” your application as against the job being offered.
One important point to make in this area is the unfair use by employers of an individual’s arrest record vs. their conviction record. Arrests occur for all kinds of reasons and often do not lead to convictions. An arrest record only raises unanswered questions about criminal culpability …what happened – why was this person arrested – was it a case of mistaken identity?
Whereas a criminal conviction creates a legal certainty that a criminal act occurred. A conviction means the person committed a crime beyond a reasonable doubt. An arrest record “does not establish that the individual arrested actually committed the charged crime.” Please see “Box” check controversy below.
Today – because of the internet – employers have a whole host of companies that provide background checks.
One site actually lists the top ten such investigative firms.
Depending on the investigative firm involved, the company may or may not provide a thorough report of the target’s arrest record and/or conviction record.
These firms provide different levels of background check based on the fees paid. The quickest and simplest method of obtaining a criminal history in Colorado is to use the services of the Colorado Bureau of Investigation to obtain an individual’s arrest record online at www.cbirecordscheck.com.
Under Federal Law a criminal history is considered a “consumer report.” Under the Fair Credit Reporting Act (FCRA), passed by Congress in 1970, an employer’s ability to use the information from these reports in making hiring decisions is closely regulated. Colorado’s equivalent law is the Colorado Consumer Credit Reporting Act (CCCRA).
Bother Federal law AND Colorado law, requires an employer first must obtain the employee’s approval before collecting this information. This is also true for the application phase of the process. If hired, the employer may not use that criminal history against that individual. The one exception to that rule is when an employee is under suspicion of workplace misconduct. When that happens, the employee’s permission to “pull” their criminal history is unnecessary.
The U.S. Equal Employment Opportunity Commission (EEOC) in its policy guidelines provides “guidance” on the issue of automatically excluding individuals from employment solely because of an arrest record. The policy is based on the disparate impact on minorities that result from arrest and or conviction records in employment. Employers have many opportunities to deny employment based only on an arrest record and they find a way.
The EEOC Compliance Manual policy maintains that it is “appropriate” to refuse to hire or promote on an arrest record when:
(1) the arrest is relatively recent;
(2) there is a likelihood that the applicant committed the underlying criminal charge; and
(3) there is a relationship between the underlying criminal charge and the position for which the applicant is applying (such as an applicant with a theft charge applying for a cashier position).
The truth of the matter is an employer has little difficulty establishing the “relationship” between an arrest and the job being offered. To establish the existence of actual responsibility for a crime would require studying the police reports, talking to witnesses, or waiting for the resolution of a pending criminal case against the applicant concludes. All unlikely in today’s world.
The remedy? – seal your arrest record – that is – the records of arrests that never led to actual prosecutions or were dismissed for other reasons. Here is a LINK on that subject matter.
While some companies may “tolerate” a misdemeanor conviction, a felony conviction means almost certain denial of even a first interview. Furthermore, companies often “confuse” misdemeanor and felony arrests with misdemeanor and felony convictions.
Another truth in this area – and a very strong reason to fight all criminal cases – is that in most states it’s nearly impossible to obtain certain professional licenses or security clearances if you’ve been convicted of certain misdemeanors and or felonies. (investigators, security guards, insurance agents, defense contractor jobs, doctors, lawyers, and other professionals are included in this category.
In 2012 the US Equal Employment Opportunity Commission (EEOC) issued new guidance that recommends removing the conviction question from job applications as a best practice.
The idea now taking shape across the country is to totally remove the question “block” “Have you ever been convicted of a crime?” on most job applications. Presently many of us who have criminal histories check “no” when the answer is yes because checking yes means almost never receiving a call from the employer to interview for the position.
The idea behind “banning the box” is to give job applicants a chance to enter the hiring process and to explain the facts surrounding a conviction to the recruiter or hiring manager. Whether the applicant lies outright on the application or the question is removed from the application – the applicant’s criminal history usually emerges at another time. The better approach is to seal the matters on a criminal history that can be sealed and, if possible, negotiate a plea bargain that permits you to seal your record after your sentence is completed..
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Never stop fighting – never stop believing in yourself and your right to due process of law.
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at email@example.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.
You must make a responsible choice for a Colorado Criminal Defense Lawyer – we encourage you to look at our firm. Over the last 30 plus years – H. Michael has mastered nearly every area of criminal law, procedure and trial and courtroom practice and he is passionate about getting you the best result in your case. He has written and continues to write extensively on Colorado criminal law and he hopes this article – – helps you in some small way. H. Michael hopes you found this page helpful – Colorado Criminal Background Checks – Caution Ahead – Why Pleading Guilty Could Cost You Your Future.