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Charged With A Crime?

Colorado Criminal Background Checks – Why You Should Avoid ANY Conviction

by Colorado Criminal Defense Lawyer for the Tactical Representation of Colorado Individuals Charged With Colorado Crimes – H. Michael Steinberg

Almost on a weekly – sometimes a daily – basis, I receive phone calls from individuals trying to expunge their records. These people have found that even convictions for minor offense have prevented them from obtaining or sustaining employment. The message to these phone callers is most often bad. Under Colorado law, with the exception of certain drug crime related convictions, is not expungeable under current Colorado Law.

What follows are the reasons you should hire a Colorado Criminal Defense Lawyer UP FRONT before the individual takes the inexpensive and easy way out and accept a plea bargain that immediately ends the case with a fine for example – but which ends with a conviction for a crime – no matter how insignificant.

Criminal convictions carry a stigma that can follow the convicted for the rest of their lives

The stigma associated with criminal activity impacts employment opportunities as employers avoid hiring individuals with criminal convictions because they fear being exposed to liability and feel a criminal conviction reflects poorly on an individual’s character… making the employee less desirable and less qualified.

Currently, in 2011, …about twenty-five percent of the nation’s adult population lives a substantial portion of their lives with a criminal record.

More and more employers believe that it is best to have accurate and complete information about an applicant’s criminal history. Criminal background checks are an inexpensive, efficient way to ensure that employers have accurate and complete information regarding an applicant’s background. Because private employers are somewhat limited in how they can screen applicants, criminal background checks may be the only practical way for employers to investigate an applicant’s relevant criminal history.

Can a Criminal Background Check Be Used to Exclude Me From a Hiring Decision

Little or No Protection Under Federal Law

Title VII of the Civil Rights Act of 1964 (“Title VII”)8 prohibits employers from discriminating against individuals in employment on the basis of “race, color, religion, sex, or national origin.”9 Claims under Title VII are analyzed under two theories, disparate treatment’° and disparate impact.”

A convicted criminal would not be able to bring a disparate treatment claim based on his or her status as a convicted criminal because convicted criminals are not one of the protected classes listed in Title VII.

Why Is The Employer Liable for Hiring A Person With A Criminal History?

Negligent Hiring

Many states allow recovery for harms caused by an employee through the tort action of negligent hiring.” Under section 213 of the Restatement (Second) of Agency, “[a] person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless . . . in the employment of improper persons or instrumentalities in work involving risk of harm to others.””

The basis for character’ when such finding is based upon the fact that the applicant has previously been convicted of one or more criminal offenses . . . .”).

What this level of care entails depends on the situation. Different standards are suggested based on the work that is involved: “One can normally assume that another who offers to perform simple work is competent. If, however, the work is likely to subject third persons to serious risk of great harm, there is a special duty of investigation.”

In a negligent hiring action,” the employer breaches his duty of care if he hires an employee whom he “knew or should have known” to be incompetent.

An employer is only liable for failure to uncover information, such as criminal history, bearing on the employee’s fitness when that information could have been discovered by reasonable investigation.’

What is a Reasonable Investigation?

An employer’s duty of care entails making a reasonable inquiry into an applicant’s background. “The scope of the investigation [required] is directly related to the severity of risk third parties are subjected to by an incompetent employee.” When the nature of the work is such that there is “a high risk of injury to third persons,” an employer must exercise greater care in investigating potential employees.” The scope of the employer’s duty to conduct a reasonable investigation is largely dependent on the amount of contact with third parties involved in the performance of an employee’s duties.

The more contact with third parties, the greater the risk of harm to third parties resulting from “a special relationship” between third parties and the employer, which increases the employer’s duty to investigate.”

In recent years, the criminal background check industry has grown exponentially. Particularly in the wake of 9/11, the ready availability of inexpensive commercial background checks has made them a popular employee screening tool.

In one survey, more than 90 percent of companies reported using criminal background checks for their hiring decisions. At the same time that the background check industry has expanded, the share of the U.S. population with criminal records has soared to over one in four adults.

American workers are treading water in the worst labor market since the Great Depression. To keep afloat, An estimated 65 million U.S. adults who have criminal records confront barriers that prevent even the most qualified from securing employment.

The concurrent losses to the individual are devastating. A person’s interaction with the criminal justice system extends beyond what may be a minor arrest or conviction to a lifetime of social and economic disadvantage.

One prominent researcher has found that a criminal record reduces the likelihood of a job callback or offer by nearly 50 percent, an effect even more pronounced for African American men than for white men.

1. Why Does an Employer Conduct a Background Check?

Employers check potential and current workers for several reasons. The things an employer wants to know about you can vary with the kinds of jobs you might seek. Here are a few of the reasons for employment screening.

Negligent hiring lawsuits are on the rise. If an employee’s actions hurt someone, the employer may be liable. The threat of liability gives employers reason to be cautious in checking an applicant’s past. A bad decision can wreak havoc on a company’s budget and reputation as well as ruin the career of the hiring official. Employers no longer feel secure in relying on their instinct as a basis to hire.

Current events have caused an increase in employment screening.

Child abuse and child abductions in the news in recent years have resulted in new laws in almost every state that require criminal background checks for anyone who works with children. The move to protect children through criminal background checks now includes volunteers who serve as coaches for youth sports activities and scout troop leaders.

Corporate executives, officers, and directors now face a degree of scrutiny in both professional and private life unknown before the Enron debacle and other corporate scandals of 2002.

False or inflated information supplied by job applicants is frequently in the news. Numerous studies and news articles, citing varying results, have been published on the topic of resume fraud. While study and survey results may vary, it is clear that human resources professionals are alert to the potential for embellished or outright falsehoods. Such reports make employers wary of accepting anyone’s word at face value.

Federal and state laws require that background checks be conducted for certain jobs. For example, most states require criminal background checks for anyone who works with children, the elderly, or disabled. The federal National Child Protection Act authorizes state officials to access the FBI’s National Crime Information Center (NCIC) database for some positions. Many state and federal government jobs require a background check, and depending on the kind of job, may require an extensive investigation for a security clearance.

The “information age” itself may be a reason for the increase in employment screening — the availability of computer databases containing millions of records of personal data. As the cost of searching these sources drops, employers are finding it more feasible to conduct background checks.

2. I don’t have anything to hide. Why should I worry?

While some people are not concerned about background investigations, others are uncomfortable with the idea of an investigator poking around in their personal history. In-depth background checks could unearth information that is irrelevant, taken out of context, or just plain wrong. A further concern is that the report might include information that is illegal to use for hiring purposes or which comes from questionable sources.

3. What Is Included in a Background Check?

Background reports can range from a verification of an applicant’s Social Security number to a detailed account of the potential employee’s history and acquaintances. There is even some evidence that employers are now searching popular social networking Web sites such as MySpace and Facebook for the profiles of applicants.

An October 2007 survey from Vault.com found that 44% of employers use social networking sites to obtain information about job applicants while 39% have searched such sites for information about current employees.

Here are some of the pieces of information that might be included in a background check. Note that many of these sources are public records created by government agencies.

Driving records

Vehicle registration

Credit records

Criminal records

Social Security no.

Education records

Court records

Workers’ compensation

Bankruptcy

Character references

Neighbor interviews

Medical records

Property ownership

Military records

State licensing records

Drug test records

Past employers

Personal references

Incarceration records

Sex offender lists

Information to be included in a background check will almost certainly depend to some extent on the employer and the job involved. For many jobs, a state or federal law requires the employer to conduct a background check. Jobs that involve work with children, the elderly or people with disabilities are examples of jobs that will almost certainly require a criminal background check.

In addition to information gathered from documents or databases, employers may also gather information on job applications or employee questionnaires. Concerns about the highly personal nature of some questions can lead to lawsuits. One such case reached the U.S. Supreme Court. In this case, the Court said personal information required of contract workers at the Jet Propulsion Laboratory was “reasonable” given the government’s interest in screening employees.

H. Michael’s Conclusion:

Fight hard to settle a case in a way that avoids a criminal conviction. A lawyer may help you do that. Call one now…. not later when it is too late to reverse the conviction.


Other Articles of Interest:

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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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Primary Web Site:  http://www.HMichaelSteinberg.com
Colorado Criminal Law Blog:  www.Colorado-Criminal-Lawyer-Online.com
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