If you are applying for a job, you may be asked on the application to disclose whether you have ever been convicted of a crime. Employers then verify this information with a background check. It is widely stated lying in this situation is the worst thing a job applicant can do. However, if you have a record that includes an adjudication withheld rather than a standard criminal conviction, you may be unsure whether you are obligated to report that information.
When a judge withholds an adjudication, it means the court is not formally finding the defendant guilty. As such, there is no formal criminal conviction. Instead, the judge “withholds adjudication” (“adjudication” in this context means “conviction”), usually taking into consideration an agreement that requires the defendant to complete a diversion program. If the defendant meets the terms of this agreement satisfactorily, the charge will be dismissed. If he or she doesn’t, the case is revisited, and the judge may make a more formal ruling.
An adjudication withheld is a case that is temporarily on hold. The case has not been dismissed, but it also has not led to a conviction or a finding of guilt. Instead, the case is in limbo while the defendant completes the requirements of his or her agreement. Such requirements might include probation, community service, rehabilitation, or a class or educational requirement.
In the simplest of terms, an adjudication withheld is not a conviction. If you are asked whether you have ever been convicted of a crime and the only criminal activity on your record is an adjudication withheld, you can accurately answer, “No.” If you are asked specifically whether you have ever had some type of withheld or deferred adjudication, you would have to answer, “Yes.”
Keep in mind a withheld adjudication can and will still come up on your background check. While some employers will recognize the difference between a conviction and an adjudication withheld, others will not be familiar with the terminology and will just see the crime with which you were charged. Some employers may feel you were dishonest with them by saying you had never been convicted of a crime, even if you were technically telling the truth.
For these reasons, it is sometimes wise to be upfront if you have a withheld adjudication on your record. You can still check “No” when asked about convictions, but you might include a note explaining your charge and the agreement you have with the court. This explanation will help the employer see the nuance in your situation and understand what you are doing to avoid a conviction. The employer may also be so impressed with your candidness that you score extra points rather than hurting your hiring chances.
About Michael Klazema The author
Michael Klazema is Chief Marketing Technologist at EY-VODW.com and has over two decades of experience in digital consulting, online product management, and technology innovation. He is the lead author and editor for Dallas-based backgroundchecks.com with a focus on human resource and employment screening developments.
As painful as it might be, it's important to answer questions about your past with honesty.
Some companies use job applications to screen candidates, while other organizations use them simply as a formal document required by Human Resources.
From an employee perspective, an application should be considered an important part of the employment and application process; it should be completed neatly and accurately. If you are found lying on a job application, it could get you into trouble.
Many organizations use employment background checks to validate and verify information in your application and to check records and references. If there are any discrepancies between what the employment background check shows and what your application or resume state, you'll likely get a call from HR to find out why. Lying on an application is grounds for rescinding an offer or termination of employment if you're already working.
The past can come back to haunt you during the application process
The idea for this post came to me when a friend of mine ran into an issue on a recent employment background check. She began working for the organization even though her background check had yet to be finalized. One day, she received a call from Human Resources letting her know that an arrest showed up on her record that she did not disclose on her application. As you can imagine, this opened up a whole can of worms for her. In fairness, the arrest had occurred some five years prior, all charges were dropped, and she was informed by her lawyer that the arrest would not show up on her record. She had to explain all of this to HR and submit documentation from the courts indicating that all charges were dropped. She then had to resubmit her application indicating the arrest and stating what they had discussed.
Technically, she didn't think she was lying on her job application because no charges were filed and her record was supposed to be cleared of the arrest. However, the issue lies with the wording of the question on the application, which was "Have you ever been arrested for a crime?" In reality, she had been arrested, just not convicted. If the question had read, "Have you ever been convicted of a felony or crime?" then "no" would have been the correct answer. Fortunately, all worked out in her favor — but that's not the case for everyone. I have seen employees have offers rescinded for not disclosing information or lying.
We've all made mistakes. If we've done the work and learned from them, we deserve a second chance. Per NOLO, an online hub providing do-it-yourself legal guidance and support, it's estimated that 65 million Americans have an arrest record. If you're one of those 65 million, then landing a job might be a bit challenging, and the application process might bring up some unwanted feelings of apprehension and nervousness. There are steps you can take, however, to avoid lying on a job application and support your goal of being gainfully employed in a job that uses your skill set and expertise.
How to complete a job application when you have an arrest record
1. Know your rights
Title VII of the Civil Rights Act of 1964 protects employees from discrimination. Because of this, companies with a blanket policy that exclude anyone with convictions might be considered discriminatory because certain races have higher incarceration rates than other races. The EEOC (Equal Employment Opportunity Commission) has guided employers as to how they can screen out potentially unsafe applicants without discriminating. The Fair Credit Reporting Act also protects employees against issues with inaccurate records, including background-check screenings and criminal records that might include errors like incomplete information, misclassification of crimes, not reporting when a person was exonerated, or if the charges were dropped.
Many states also have laws preventing employers from asking about criminal history, limit the amount of information that can be requested, and whether or not the information obtained can be used to determine if an applicant will be hired. 'Ban the Box' legislation has been adopted by 35 states and over 150 cities and counties so that employers consider only qualifications, not the stigma of convictions, when evaluating job candidates. You can find out if your state prohibits such questions on an application by referring to State Laws on Use of Arrests and Convictions in Employment.
2. Do what you can to have any charges expunged
If you have an arrest record of any sort and the charges were dropped, check with the courts you dealt with to ensure the arrest or charge was expunged from your record. If it wasn't, find out what you need to do to have it removed by speaking to the courts or a lawyer. It's also a good idea to do a search or work with a background-check agency (do an online search for reputable companies) to see what comes up on your background check before applying for jobs. It's common for mistakes to show up on your record, as well, so you can be proactive and take care of them before red flags pop up for prospective employers.
3. Use good judgment
When completing your application, read the questions clearly and use good judgment as to what you do or do not disclose (while remembering your rights). If you have a history of an arrest or charge and you're certain that it's not on your record, then you might choose not to disclose it. At the same time, if the question is "Have you ever been arrested for a crime?" and the employer does a Google or public-record search and finds the arrest, they might question your integrity.
If you do have a record of a conviction, then it's best to disclose and explain the incident instead of trying to hide it. It will likely come out in the background check and prevent you from being hired because you flat out lied on your application. When you disclose it up front, it shows integrity and gives the employer the chance to consider the conviction as it relates to the job you'll be doing. If you have a DUI felony, for example, and you're not required to drive a company vehicle, then it likely shouldn't prevent you from being hired in many organizations, as long as you disclose it if requested to do so. If you lied about it and it shows up on your record, then it will look bad and likely result in your not being hired.
You Deserve A Second Chance
Again, mistakes happen. But if you've learned from them and moved on, then you deserve a second chance. It might take some time to find an employer that agrees, but it will happen, so be patient. Research demonstrates HR professionals are becoming increasingly open-minded about hiring candidates with prior convictions. A 2018 survey of HR professionals, managers, and non-managers revealed that only 14 percent of professionals would be unwilling to hire someone with a prior conviction, and over half do not feel strongly that criminal history is a factor in hiring. And an overwhelming majority — over 60 percent — of companies surveyed have experience hiring someone with a criminal record.
When it comes to completing your job application when you have any kind of criminal record, there are a few rules to follow: Use good judgment, know your rights, and double-check your record so you don't have any surprises come up during your background check.
When it comes to determining whether or not you should include something on your resume, who better to ask than a professional? Our TopResume writers are here to help!
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