About 3 months ago I applied to work as an automotive technician at (deleted by moderator) in the Phillipsburg mall in Phillipsburg New Jersey. I signed all the forms to agree to a background check.

I was given my mandatory letter informing me of the background check, and also a "pre adverse action" letter stating that I had been arrested for "selling fake drivers licenses" and that my charge was "remanded".

When I was 20 I was arrested for "possession of a fake drivers license", the forth degree of that particular felony not the first degree "selling or manufacturing". Also the charge was administratively dismissed, and my municipal charges (traffic) from the same incident were remanded back to municipal court, NOT MY FAKE ID CHARGE, THAT WAS OBVIOUSLY DISMISSED.

The "selling of a fake drives license" charge was the only thing that came back on my background check.

The person doing my background check obviously didn’t read, or was not privy to the fact that I was charged with the forth degree of said felony, not the first. And they were too stupid to realize that the lower charges were remanded, not the felony, which was dismissed.

I called the third party firm that furnished my background check which is located in the Midwest, they gave me the run around and told me I had to go to the courts to get it changed, I told them that everything about my record is correct, they were just reporting it wrong. They basically told me to go collect my entire life story from every court I have ever been to and to fill out some form and send it back to them and wait 30 days and jump through all these ridiculously time consuming hoops, this is after I had already been waiting a month and a half for sears corporate to "approve" my hire (I was already offered a job, they just told me they had to run my background check first).


I went back to (the employer) and told them about the pre adverse action letter and the discrepancies I had with it. The HR manager told me not to worry, that I could simply provide him with all the information and that he would fax it to (the employer's) corporate and they could evaluate it themselves without going through the time consuming waste of dealing with the background check company.

I collected one of my court forms clearly stating that it was the fourth degree, not the first and I also provided them with a copy of my administrative order of dismissal, which clearly stated this charge was dismissed and that the LOWER MUNICIPAL charges were the ones being remanded back to municipal court. This is the exact form they asked me for, so I thought they knew what they were doing.

A month later and after I hound them on the phone for a week they finally tell me I was denied employment because of what was on my background check and that I will be receiving my adverse action statement.

Now, the misleading background check was one thing, but I know in New Jersey we have a little known law which makes it illegal to deny someone employment for simply being arrested, only convicted.

This is obviously what happened.

I’ve been scouring the net trying to find the exact NJ statute that states this so I can copy it and include it with my proposed settlement letter I will be sending to sears.

basicly my whole argument revolves around the existance of this law, which i have read nj labor lawyers refering to on the web, but i cannot find the exact law code.

What are you trying to acomplish (the employer) has the right not to hire you for any reason they wish long as it violates no law like discrimination! Your spending too much time on this just find another job!

I think I left out a key part of my argument, that the state law I am trying to find states that you can’t deny someone employment because of an arrest that never ended in conviction. If it ended in a form of conviction, even if it was a lesser charge, or the outcome of the charge is unclear (in my case it is not, I gave them a copy of my administrative order for dismissal) then you can deny because of an arrest, but that would be silly because the conviction would show up too.

This one incident is the ONLY thing on my background check, so if they say I am not hired because of something on my background check it can only be that. If they already offered me the job and then renege on it that means that my background check is the SINGLE reason why they did not hire me, and like I said before I have read in new jersey it is against the law to deny someone employment because they were arrested (if that’s all that ever happened to them, no conviction), because just being arrested doesn’t mean you did anything, that just means you were charged with it. In Cali it is illegal to even report the arrest in the background check if it did not end in conviction. If I lived in Cali I would have been working happily at sears for 3 months by now.

You’re saying that they have the right to not hire me for any reason save a discrimination case. But because they are not hiring me because of my background check they have to state the reason, they can’t just say "no" with no explanation. And in new jersey, so I have read, denying employment for an arrest that did not end in conviction is a violation of some discrimination law, you cant discriminate against people who have simply been arrested but were dismissed, that means they never broke the law in the first place technically. I actually don’t see why it isn’t a national law; a few states are like this I understand.

I have all the information of the attorney who stated this fact about new jerseys background check laws, I’m just waiting to call them on Monday.

I have since found employment with new jersey citizen action, the largest civil watchdog group in nj. My job before sears stiffed me? Law clerk ;-) Imagine that, qualified to read and process confidential information about private legal matters yet somehow not qualified to mount tires and change bushings…

I am going to expunge my record to prevent this BS from happening again but that is expensive and time consuming, I decided not to start that process when sears told me I didn’t need to dispute my background check with the firm that furnished it, I thought sears would have the intelligence to see what happened, especially after I provided them with every bit of paper they asked for with specific notes on what they messed up and how they messed it up.

Two words "at will" they are under no obligation to hire you regardless of the final outcome.

then why would laws that govern the use of pre-employment background checks even exist?

if they have to state in writing that the only reason they didnt hire me was because of my background check, which contains one arrest that was dismissed, and the law states this exact action is illegal, i dont understand how it isnt an open and shut case.

they made the mistake of officialy offering me the job pre-background check, i think thats the key to proving that my background check is the ONLY reason they didnt hire me.

Looking at what you posted and what you been arrested for I wouldnt hire you either. Thats not the point. (the employer) has a right not to hire you based on background check if there is law saying they cant please site it. You can spend thousands trying to sue (the employer) but why not just put your focus on seeking employment elsewhere?

So you wouldn’t hire me to change tires because 5 years ago when i was 20 I had a fake ID to drink? I had a real license at the time; I wasn’t using a fake id to drive or anything.

I found out more about this supposed "law" I’m seeking

Turns out in New Jersey its iffy, it’s not really a law it’s a guideline made by some powerless civil rights agency. This however does not mean I have no argument entirely; it’s just going to make my chances of getting compensated less than favorable. It’s a grey area, although people have argued this and won in New Jersey from what I have read. If I was black they’d probably send me a check in a week! ha.

Like I already stated I did seek employment elsewhere, I just don’t take lightly to people violating my rights. No one should be denied employment because they were simply arrested. I’m not going to "spend thousands" ether, I’m not stupid I can fill out forms and have papers served myself. Basically I’m hoping they will just pay my proposed settlement of a few thousand to make up for the time I would have been working there. If they don’t give in at that point ill probably drop it unless a lawyer decides to take my case for a percentage, i agree with you that it isn’t worth wasting any money on, that’s why I didn’t even pay to have my record expunged yet. It was quicker to just go find another job than to wait for my record to get expunged.

Here is the law sited as best I can as of now, like I said before the reason I came to this board was to find the exact wording of this law/guideline:

http://www.elinfonet.com/blog/index/employee_rights/Background_Checks_in_New_Jersey/

Third and forth sentence of the first paragraph:

" ...[T]he New Jersey Division on Civil Rights has taken the position that employers may not inquire into a prospective employee’s arrest record. Convictions, however, are fair game as long as they shed some light on an applicant’s qualifications for the position."

does that mean the background check agency is liable for reporting my dismissed arrest becaus they thought it was a "remanded" arrest? if they had correctly read it as dismissed that measn they coudlnt have reported it to a company in new jersey looking to hire someone correct?

Well I called that lawyer from the above link, she agreed 100% with everything that I have already stated and said that "although you have a case, it’s not a slam dunk case. If you call around, you may find a lawyer that thinks you do have a slam dunk case."

It seems that the firm who furnished my background check is more liable than (the employer) They should not have reported my arrest to (the employer), they should have been more diligent in their research, they would have found it was dismissed not remanded and they would have been unable to provide (the employer) with that information, my background check would have been totally clean, and I would have been hired. And it is no fault of mine or the court that they misread the outcome of my charge, all the courts information is accurate, the firm is the only entity responsible for the misinformation on my background check.

Okay. Find that lawyer. Then sue. Good luck.