Happy New Year and that means for many “cleaning” up their criminal record. My clients come to me because they want to “erase” a conviction for personal reasons but most do it because it negatively impacts them in getting a job or a professional license.
A criminal conviction may lead to an administrative investigation and hearing which will likely result in losing their job or license to work. Employers have a legal duty to exercise due diligence in the hiring process. That duty may be violated if an employer hires someone they knew or should have known in the exercise of reasonable care was dangerous or unfit for the job.
Employers are well aware that they could be sued and that courts and jurors alike have awarded large monetary damages for “negligent hiring” in cases where the employer could have avoided the harm by a criminal record check.
Benefits: Expungement is a general term to describe the removal of information from a criminal record by deleting or sealing the information. It allows an individual to answer “no” to a potential employer or other background checks if he/she has been convicted of a felony; allowing eligibility for professional certificates and licenses; allowing eligibility for student loans or government assistance such as housing.
Who qualifies: Individuals who have been convicted of a misdemeanor or felony for more than one year (excludes sex offenders); those who have fulfilled their probation; those who have completed the terms and conditions of their probation; those found “not guilty” or had the charges against them dropped.
In some situations, if you were convicted on a misdemeanor and are still on probation, an attorney may file with the court to request early termination and have the conviction dismissed. If you were convicted of a felony and are still on probation, a petition should be filed with the court to request an early release from probation in addition to having the conviction reduced to misdemeanor and dismissed.
An attorney must file the appropriate court documents; attach documentation which would support an early release or a dismissal. A hearing will also be required and proper service and notice to the prosecution is mandated. Garnering agreement of the judge and prosecutor to your position must be the goal.
What if you lied about your criminal record? You have the job but let us assume management finds out you were less than truthful about a prior conviction or possibly losing your professional license because you failed to disclose a conviction. An administrative hearing is the venue used.
What should you do if an investigator from a state licensing agency or human resources representative contact you? Investigators sometimes lull the employee into a false sense of security. Investigators call you in for an “informal” conference to get your side of the facts. The “informal” conference may seem so easy that the employee feels that all he/she has to do is tell the truth and fails to consider bringing in an attorney in these types of investigatory settings. But what you do not know is that a senior manager is conducting the meeting and the interview is recorded and a written report will be subsequently be prepared.
This scenario is similar to when a detective calls you in to the police station to tell your side of the story. Feeling comfortable that you can handle it, you go in without an attorney. The detective tells you all you have to do is be honest and before you know it – a criminal complaint has been filed against you. Clients forget what they know about their “Miranda” rights–simply stated, “to be silent” and let your attorney do the talking. Same idea works in the employment administrative scenario.
The senior manager will then forward the case to legal counsel who will contact law enforcement. Having an attorney attend the meeting reduces the chance that your comments may be misinterpreted. The best opportunity to resolve a case favorably comes at the investigative stage. More importantly, an attorney may point out mitigating factors that addresses your employer’s concerns.
Individuals who have sealed or expunged their records have saved them from losing their jobs, to obtain professional licenses, or to honestly check the “no” box when asked if they have been convicted of a crime.
Read more about a recent success story for a client, regarding reducing felony charges to misdemeanors, early termination of probation and expungement under Press Release on my website, attycastaneda.com.
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