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I just have a quick question. I have been interviewing for a…

I just have a...

I just have a quick question. I have been interviewing for a position and they have just check my references. I am anticipating an offer however, this far, they have not asked about criminal background not even on the application. I know I am not legally obligated to tell them if they don’t ask, but I want to tell them before I accept the offer. Should I wait until they make the offer to tell them or should I tell them now? I have undergone a series of interviews and the most recent one was with the CEO. On previous jobs, I just checked the box and it was handled that way. In this job, there was no box so I’m unsure how to proceed.

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Answered in 6 minutes by:
3/28/2018
Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,122
Experience: Employment/Labor Law Litigation
Verified

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

(The system will automatically generate a phone call request to you. I intend to just use this chat format as I am not accepting phone calls at this time).

I am not a computer, but yeah, that the service questions beforehand are handled by a bot.

Now, to your question, when the company doesn't ask, there really is never a good time to tell the employer. Legally speaking, because they haven't asked, you don't have to tell them, as you know. Telling them now could cost you the job offer. Once you've accepted the job, if they find out later, they can certainly choose to act on it, but it is MUCH more difficult then.

While I can certainly understand the desire to be upfront with the employer, doing so here loses any and all legal protections you'd otherwise have down the road. Of course, if they offer the job even after the revelation, you'll be much more secure in your current position.

I feel that waiting until they make the offer, but letting them know before you are in the actual job is the most reasonable compromise that maintains some of your legal protections, while being as upfront with them as possible.

I still personally wouldn't do it, but I don't fault you for your desire to.

If you have any further questions or other facts that you would like me to consider, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a three, a four or preferably a five star rating so that I receive credit for working with you today. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Please DON’T rate my service until after you have asked any follow up questions that you have, so that I have the best opportunity to earn all 5 stars. Also, feel free to request me in the future, if you have questions concerning a different matter.

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Customer reply replied 25 days ago
You mention legal protections. What exactly are those protections? I went AWOL from the Army when my mom had cancer at the age of 19, I’m a health care professional, so my crime of AWOL is unrelated to my current profession and my prospective role. I did not receive a dishonorable discharge, instead I received a bad conduct discharge and served 4 months in the brig. To date, it has not impacted my ability to be employed at reputable hospitals. My main reason for wanting to tell them is simply because I want them to know they can trust me. But if I do tell them, and then they retract their offer, what protections do I have? Do you think they will retract their offer? The company is based out of Washington state if that makes a difference.

There aren't many but at least some protections against not hiring or terminating someone just because they have a criminal record.

An employer has to be able to point to some reason, like the work they do, the clearance required for a job, etc. When a person has been already been offered a job, and the employer didn't even ask about convictions, that is harder to say. When a person has been working at the place for a while, it is even more difficult to say.

So, while the protections are not as strong as Title VII laws against hiring someone because they are a female or because they are Hispanic, for example, there are at least some minor protections that take effect once a job is offered or once you are working there. That is because it is easier to say "we looked at your application, but have offered the job elsewhere" than it is to say "I know we offered you the job, but we suddenly and inexplicably changed our minds based on other stuff....definitely not what you told us."

Do you see the distinction? So, it is at least better to get the job offer on the table and then say "I accept. Now, I know you guys never asked, but I feel you should know....."

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As for whether or not they will retract, that is less a legal question that one that requires knowing the company and the individuals involved.

I would say that if they really cared, they would have required a background check or asked in the application process, but that is the best I can say.

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Customer reply replied 25 days ago
Thanks for your help. Does this count as legal advice?

This is not legal advice, per se, because we do not have an attorney/client relationship. We are just chatting and your payment is optional (though I hope you'll do so).

That being said, I am an attorney of many years and have practiced in the area of law coming up on 20 years now. Employment law and military law are two of my specialties, so when I chat on these topics, it is with some knowledge.

Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,122
Experience: Employment/Labor Law Litigation
Verified
Allen M., Esq. and 87 other Employment Law Specialists are ready to help you
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Customer reply replied 25 days ago
I appreciate your help. I will definitely pay you for your helping me of course. I think we should also at some point discuss my options about getting my military records straightened out. But that’s a different discussion for a different day. Thanks for your help!

I can certainly address that question as well. Take care.

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Allen M., Esq.
Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,122
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Experience: Employment/Labor Law Litigation

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