Criminal background checks are nothing new and, in fact, more than 3/4 of all federal employers run a background check on potential hires regardless of the position. However, increased pressure from the public, a proliferation of negligence in hiring lawsuits and more efficient screening technology can cause overreach in some cases and keep law firms like Tully Rinckey PLLC busy with litigation. The National Consumer Law Center (NCLC) conducted a report that outlines several problems with employment screenings.There are some offenses that will automatically bar you from consideration for a position, including drug convictions and violent crimes. The Equal Employment Opportunity Commission (EEOC) rules state that a criminal conviction alone cannot be used to deny employment and that the hiring body must also take into consideration the following:
(1) Relevance of the conviction to the position;
(2) The scope and severity of the offense; and
(3) Length of time since incarceration or conviction.
Pre-employment security screenings for jobs in the federal tech industry, the military or any branch of the government where sensitive information is handled are necessarily more extensive and detailed than security screenings for other employment options, but the process can be confusing for the uninitiated. A position that requires the job holder to obtain a security clearance calls for detailed scrutiny. The legal violations which are the focus of security clearance analysis are divided into three categories:
(1) Infractions, which are punishable by a fine;
(2) Misdemeanors, which are punishable by fines of less than $10,000 and no more than one year in jail; and
(3) Felonies, which will garner one year or more of imprisonment if convicted and fines of more than $10,000.
It is illegal to omit information or lie on a security clearance application and that act itself will disqualify an applicant. Under federal law, past convictions, arrests or even non-criminal court records can be accessed indefinitely, but individual states have different criteria. If someone is applying for any government or civilian job that requires a security clearance, the following things must be disclosed:
(1) Whether the applicant has ever been charged with a felony involving alcohol, drugs, firearms or explosives;
(2) Any arrests within the past 10 years;
(3) Whether the applicant has been court martialed or faced other military discipline proceedings; and
(4) Whether the applicant is currently being investigated or facing criminal proceedings.
The problem with background checks isn’t when they keep unqualified persons from working in sensitive positions, rather the problem comes when prospective employers use information that’s illegal to consider, false or taken out of context to improperly deny eligibility. It’s up to you to find and clear up any erroneous information before you submit to a government employment background check and to learn about things in your past that will keep you from getting that government dream job. If you think you’ve unfairly been denied employment or a security clearance, visit an attorney who specializes in federal or military employment law.