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What are my rights and protections in applying for employment under Federal Title VII, FCRA and Arizona employment law. Here is the background for my question. I was charged with criminal property damage -DV. This happened last July 10, 2012 when I called 911 because my boyfriend hit me. The 911 operator told me to go outside. Two officers came and one went inside to talk to my boyfriend. The next thing I knew, the police officer came out of the house and said I was under arrest for criminal property damage DV for breaking his glasses (which I did not do). (These glasses cost 1.99) Later, when we met with the prosecuting attorney, my boyfriend said he realized that I did not break the glasses after all. The PA then told my boyfriend that if he "changed his story," he would be charged with the felony of lying to a police officer and the State of AZ would still not drop charges against me. The PA offered me a plea deal, diversion (mandatory counseling) and the case against me would be dismissed and the arrest would not be recorded. I completed, the diversion, the case was dismissed, and he kept his promise and no records show up on any public searches of records. However, if a court runner search is done, the charge and the disposition date can still be seen. This is the background that gets me to my question. When I apply for employment, am I required to reveal if I was arrested (no conviction)? Is it lawful for the third party FCRA background screening people to send a court runner to the court house and report these findings to a potential employer? What are my rights and protections under Arizona law and FCRA?
Please treat this as an Employment Law question it is Not a Criminal Law Question. Please do not re-categorized this question.
Hello I am a licensed attorney here to help you with your question, please review my response and do not hesitate to ask for clarification
This is a common issue, under the law an employer can conduct a criminal background check on a prospective employee,
a Court runner would be unusual, however a basic criminal check will be done,
in terms of an arrest record,
: No Arizona statutes have been located thatspecifically restrict a private employers ability to obtain and/oruse conviction records. An employers inquiries into anapplicants prior convictions are acceptable provided it states onthe employment application or during interview that convictionsare not an absolute bar to employment. Guide to PreEmployment Inquiries Under the Arizona Civil Rights Act, FairEmployment Practices Manual (BNA), 453:1861.
In terms of a question regarding an arrest, legally you had an arrest,
but no conviction and no record,
Typically the question asked would be if you have any criminal conviction, asking for an arrest may lead to discrimination
The FCRA imposes obligations on employers who request criminal background checks and on the firms that provide them. Employers must do all of the following:
Firms that run background checks also have obligations under the FCRA. They must take reasonable steps to make sure that the information they provide is accurate and up to date. If an applicant disputes the contents of the report, the agency must conduct a reasonable investigation. If the investigation reveals that the report was incorrect, the agency must inform the applicant and any other person or company to whom it has provided the report.
Thank you. Can 3rd party background checks do "court runner" procedures, or are they restricted to just what is accessible through public court records?
From what I understand, expungements, sealed records aren't available to the public but a "court runner" can still find them. Are 3rd party background checkers allowed to obtain expungements or sealed records?
A 3rd party cannot obtain sealed records,
and can only search public records, they will need written authorization from you to search or open a sealed record
Thanks for the answer. Where can I get a copy of the Civil Rights Act, FairEmployment Practices Manual (BNA), 453:1861 manual?
It is not online, you can contact the above link,
Thank you. Do they also need my written permission to do a "court runner" process, that would reveal that I was arrested? Am I obligated to reveal that I was arrested.
yes, permission is needed for a court runner,
Are you still there?
They can ask, but it may raise a discrimination issue, if they use it against you, and if they are asking about convictions,
only arrests the law in AZ, may not allow it, as the questions have to be related to some business reason
From my perspective, my arrest would not pertain to any business reason. If they do ask, then can I assume I don't have to reveal it? I've done several background checks on myself, as well as one employment agency has, and no criminal or any other records are found. The only way a potential employer can find something is through the court runner process.
you would be fine a court runner can only access public information, not sealed information,
also an arrest in no way should hurt you, only a conviction
Okay, thank you. I haven't been apply for jobs because I did not understand what my legal obligations were. So to summarize, I do not have to reveal my arrest, say 'no' to questions regarding convictions.
Can a background check company do the court runner process anyway without your permission, tell the employer information, and the employer not really telling you the reason they didn't hire you, only to say, "we have more suitable applicants." We can't see what they're really doing behind the scenes, and they may not always be up front.
The reason for my question is that if I suspect this has happened, what options do I have for redress?
You can sue them for violating your civil rights,
Your record cannot be looked into by a court runner,
You would have to give the Court full authorization,
also, if they are not hiring you you would sue them as an arrest and non conviction should have no bearing on your job performnce
Thank you. I'm assuming I would take this up with EEOC?
If you have any further questions please do not hesitate to ask.
Any other agencies or online resources that you can recommend?
Discrimination/Harassment – State Agency
Office of the Attorney General, Civil Rights Division (CRD)
Web Address: http://www.azag.gov/civil_rights/
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You can contact your local agency,
Thanks. I cannot think of any other questions. May I keep in touch if throughout my job search I encounter any problems?
yes, you can ask for wallstreetfighter esq., at anytime
Thanks for the great service. You answered the questions very clearly and succinctly.
Thanks & have a good evening.
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