I have a question regarding lying on a employment application by an employer.
I recently applied for a job in the state of Washington. The employment application asked the following questions:

Have you ever been convicted of a felony?
Have you ever been convicted of a non-felony crime?

It then states the following:

Note: Applicants with felony convictions will not be considered for employment. Other convictions alone will not necessarily disqualify an applicant from employment. If hired, a background check will be conducted.


I have a misdemeanor on my record and I disclosed this on the application. After a conditional offer of employment with signing bonus was made to me by the hiring manager, I submitted the application and background check consent form to the hiring manager who in turn gave it to HR.

Less than a week later, I received an email from the HR manager stating the following:

Please find attached letter of adverse impact as related to the possible issuance of an offer of employment by CUP. The original letter and any related attachments will be mailed to you. We wish you good luck in your employment search.
Sincerely,
Human Resources

And the attachment that came with this email stated the following:

Dear Mr. Pacoman,

Based on our hiring criteria and the contents of this employment application, we have made a preliminary decision not to consider you further for employment.

If we do not hear from you within five business days of the date of this notice, our preliminary decision will become final.

Sincerely,
HR



I responded to this email by asking if this was related to my misdemeanor conviction (since they didn’t actually say why) and that I would appreciate a chance to discuss this with them further.

The response I got back from them the next day stated the following:

Mr. Pacoman
Our company policy prohibits the hiring of individuals with a record. While we appreciate your candidness, we will be unable to proceed any farther with your evaluation process and our decision is now final.

My question is, did they violate any law with the wording of their employment application? The statement they made in the email that their policy prohibits the hiring of individuals with a record seems to completely contradict the statement “Other convictions alone will not necessarily disqualify an applicant from employment”

Had their application actually said that their policy prohibits the hiring of individuals with a record, I certainly would not have bothered to fill out the application and the consent forms for a background check. I also have good reason to believe that the hiring manager was also made aware of the specifics to my misdemeanor by HR since I was instructed to mail the application and consent forms to the hiring manager. I don’t know whether this would constitute any type of violation but thought I should ask anyway. My main question is whether they can state, with what appears to be, false information on their employment application.

Thank you.

The statements may not be false. Certain positions may have higher standards than others. Additionally not all misdemeanors may disqualify an applicant from consideration. The specifics are what matters. If the letter provided a phone number, maybe a phone call could give you additional information that the standard form letters did not.

I believe in the case of receiving an adverse action letter, you have a right to a copy of the background check. If you wish to have this documentation, you should make your request in writing to the company that denied you employment. It's possible that the misdemeanor in conjunction with other facts lead to their decision. At least if you have a copy, you will know what their decisions were based on.

Yes, I realize that a misdemeanor may disqualify someone for a position at their company. The problem I see is that in the email from HR, they state that it is the company policy that an applicant with "a record" is not eligible and that is clearly not what the application says.

It sounds like a canned response. The companies definition of "a record" may not be the same as yours. It may sound like semantics, but it does matter in this situation.

Ultimately it sounds like this opportunity has passed. The best you can do is collect the information they have and confirm its correctness. If there are errors, I'd suggest working to have those corrected. Also have you discussed with a lawyer about having the misdemeanor expunged? Is this even an option?

Well, it appeared to me that they were giving me 5 business days to contact them. The 5th business day from the date of their orginal notice would be this Thursday Aug 25 but before those 5 business days were up, they told me it was now final.

Let me rephrase my orginal question abit. If their policy is in fact that ANY record will disqualify someone for employment and the application states that it will not necessarily do so, does that constitute a violation of any sort?

Yes, I can have my misdemeanor expunged in 18 months from now. It takes 36 months from the time of conviction to expungement and it's been 18 so far.

If their policy is in fact that ANY record will disqualify someone for employment and the application states that it will not necessarily do so, does that constitute a violation of any sort?

In Washington state, whether or not an employer can consider a conviction when making an employment decision depends on how long ago it was and whether or not the conviction has an affect upon the job. So a policy that NO ONE with any kind of record would be considered would violate state law.

However, I agree that the letter you received sounds like canned language and does not necessarily represent a policy that no one with a record of any kind will be considered.

Any suggestions on how would one go about finding out what their actual policy is then? Do I have the right to know what their policy is?

Do they have to provide me with a reason as to why my misdemeanor would have an affect on the job? Am I entitled to know what that reason is?

Not necessarily. They don't have to defend their hiring practices and policies to anyone who asks. If you feel that yours was long enough ago, and unrelated to the job, then it would be wise to consult a lawyer. A traffic violation 10 years ago in a job that does not require driving would be suspect. A misdemeanor assault charge from 2 years ago would not, pretty much no matter what the job is if you would be around others.

I agree with the others that the canned language does not at all sound suspicious. It was most likely done to avoid hard feelings. Saying that they aren't considering you because you have a record is easier to take than saying they aren't considering you because of the nature and timing of your incident. I'd hardly take it to mean that they are blantantly violating the law just because the language in the rejection letter is imprecise.

At this point, I am not asking for them to defend their hiring practices. I would like to see a copy of their policies on such matters though. Is this a reasonable request to make? Also, are they obligated to send me a copy of my employment application and a copy of the background check report? The letter they sent me said that a copy of my employment application would be enclosed but I haven't received anything from them.

As ElleMD explained, they do not have to provide you with a copy of their policies regarding hiring. If you wish to get further clarification, your recourse is to ask and see what they are willing to share on the topic.

Since you received an adverse action letter, it is my understanding that copies of the background should be made available upon request (in writing). This may be the reason they've given you 5 business days to respond.

Thank you all for your responses. I am going to make a written request for copies of my application and background report as they have already told me in writing that I will receive copies of these.

I also plan to ask them if they can provide me with more detail on their hiring practices.

So, do I understand this correctly? If, and I only mean if, they do (potentially) violate WA state employment law by instituting a policy in which ANY record disqualifies someone for employment, there is nothing that can be done about it to prove the allegation?

Assuming that a WA law was broken, that decision would have to be made in a court of law. That's a huge *if* though.

IMHO the best you can get from this situation is a better understanding of why you were not hired. At best you have learned from this experience and hopefully will be better suited on your next interview and job application.

Of course if they are clearly violating the law there is recourse. The issue is that based on what you shared, not only is it unlikely, but it would be very difficult to prove.

For what reason do you assume that they broke the law and would have disregarded you no matter what the misdemeanor? If it is just the one letter, why do you believe that over the previous statement you have from them in writing that they will consider each case separately? One somewhat vague statement that could be interpreted that they disqualified you because of your record isn't going to prove anything. That doesn't mean that in different circumstances, it couldnt' ever be proven.