More than 1 in 9 Georgia residents are out of work due to shutdowns related to COVID-19. Now that Georgia’s stay at home order has been lifted, businesses are reopening and many workers are looking for jobs. If you aren’t getting hired, it could be because of your criminal history. Find out how a criminal record restriction could help you find a job in the recovering economy.
Finding a job is a stressful experience for anyone, especially in the wake of COVID-19. You browse online job boards, send out resumes, dress up for online interviews, and then hope a potential employer calls you back. However, what many job hunters don’t fully appreciate is that Georgia employers perform background checks that include investigating their criminal records and then make hiring decisions largely based on those results. If you have trouble landing a job, it could be because a mistake from your past is sending red flags to your potential employers in ways you may not understand or in ways that are not even correct.
A criminal conviction, especially a theft or a felony conviction, can often be the deciding factor against a job candidate. Employers looking for staff to handle company funds, manage retail facilities, or work directly with their customers may use your past criminal conviction as a reason to reject your employment application. Generally, for employers to have access to your criminal history records, however, you do have to provide to the prospective employer either your written consent or your fingerprints for such access.
Under Georgia law, any employer or licensing agency is allowed to access your complete criminal history record, except where the records were restricted or sealed, in which case your records would be available only to judicial officials, to criminal justice agencies for law enforcement or criminal investigative purposes, and to criminal justice agencies for purposes of employment with such agencies. That means when you consent to a background search in your employment application, you are giving your employer access to your criminal history record.
An arrest or criminal charge does not have to sentence you to a life of employment problems. Georgia law allows some residents to shield past police interactions from employers and from the general public. In the past, this process was called “expungement”. Now, the process is called criminal record restriction.
When you and your attorney seek to expunge, or restrict, your computerized criminal history record, the information about your arrest or criminal charges doesn’t go away or get erased. The underlying information about your arrests, including police reports, indictments, sentences, etc., still exists in the computerized and hardcopy records of the police, prosecutors, and the court. Restriction simply means that the collection of your criminal history information contained in the computerized criminal history database that most employers use is shielded from the view and knowledge of most employers.
While a criminal record restriction may not affect what happens if you end up facing future criminal charges, it can make it easier to find a job. By shielding information about your past police interactions as Georgia law rightfully allows, you can turn employers’ attention away from your past mistakes and allow them to focus on how you will help them in the future as their employee.
If you think your criminal history is keeping you from finding a job, the first thing you should do is request a copy of your own criminal history record information from your local law enforcement agency (sheriff’s office or police department), for a small administrative fee. The version of the criminal history you are allowed to receive on yourself will show you what most Georgia employers receive when they do a background check. Then you and your criminal defense attorney can review that record for errors and see if you qualify for a criminal record restriction (previously called an expungement).
Sometimes mistakes happen within the court record keeping system. Georgia law has a number of diversion programs that allow criminal defendants to complete rehabilitation training in exchange for dismissal of their criminal charges. If that dismissal is entered improperly, it could look like you were convicted of a crime when you actually weren’t.
Other errors can turn up and hurt your employment prospects as well. The court clerks may have forgotten to enter an order discharging you from probation into the system, or a police department may have improperly stated that warrants are still out for your arrest. Where there are errors on your criminal record, you and your criminal defense attorney can petition the court to correct those errors. The court will review the record and your request, and, if the court agrees with you, will order that the record be appropriately expunged, modified, or explained, so that police, prosecutors, and future employers receive accurate information.
One of the diversionary programs referenced above is the Georgia First Offender Act. Under this law, a person with no prior felony convictions can enter a plea of guilt or (sometimes) nolo contendere, but the court will not impose a conviction at that time. Instead, the defendant is given an opportunity to serve a sentence and prove that he or she can follow the court’s rules for a certain period of time without any problems. If the defendant successfully completes that sentence, then the court will sign an order discharging that person from the offense completely, exonerating that person of any criminal purpose relating to that offense. Most importantly, the court’s order will specify that the person has no criminal conviction and is not a convicted felon.
The law also has a section that allows it to apply retroactively. If you would have been eligible for First Offender Sentencing and have successfully completed your sentence, you and your criminal defense attorney can petition the court to discharge you as a First Offender and enter an exoneration of guilt. Once the court enters that order, then your record will be restricted from the view of most employers.
Unfortunately, many employers will refuse to hire you even if your criminal charges were dismissed. To help control this, Georgia created a record restriction law that excludes these non-convictions from the public criminal history record. It shields arrest records from most employers where the resulting criminal charges were:
For arrests after July 1, 2013, this record restriction should be automatic, but the process does not always work automatically as it should. This is when your criminal defense attorney can help you. Also, if your conviction is older, you will need to work with your criminal defense attorney to determine your eligibility for restriction and any other computerized criminal history corrections that may need to be done. If you are concerned that potential employers may avoid official channels and use private investigators to perform their background checks, you may also want to take the additional step to have your record sealed. That is a separate process that your criminal defense attorney can also help you with.
Applying to seal your record and applying to restrict your criminal record can help protect you from any potential employers’ negative prejudices against you based on your criminal record. Some employers may view you negatively as a candidate even if any arrests you have were ultimately determined to be unfounded and the charges were ultimately dismissed. That is why record restriction can be so important for your employment future. If you were never convicted, or if you qualify for the Retroactive First Offender Act, you can shield your record from any potential employer biases and improve your chances of getting hired.
At the McCoy Law Firm, LLC, our experienced criminal defense attorneys know how to petition the court to restrict or correct your criminal history record. We can help you examine your record for errors and see if you qualify to have your record restricted. And, if you want to go a step further, we can also evaluate your case to see if you qualify to petition the court to seal all the underlying physical and computerized records of your arrest held by law enforcement agencies, prosecutor offices, and the courts. If your criminal history has been keeping you from finding a job, please contact Criminal & DUI Law of Georgia so we can begin working on your case right away.