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Employers can use a DWI against you

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How Employers Can Use Your NH DWI Arrest and Conviction Record

New Hampshire’s current state laws bar potential employers from inquiring about annulled crimes, but otherwise, the use of criminal records is not limited.

Currently, there are an estimated 65 million adult Americans who have a criminal record, with DWI convictions being among the common types of charges. If you can count yourself among one of these number, then you could face an uphill battle in your search for gainful employment. Recent research has shown that the majority of employers – according to one survey, a whopping 92%- conduct criminal background checks when hiring for a new position. If a potential employer discovers that you have a DWI conviction or arrest on your record, it could make it significantly harder to find gainful employment in today’s tight job market.

However, a job seeker with a DWI on their record does retain several legal rights. Federal and New Hampshire state laws place limitations on how a prospective employer can utilize such records when making hiring decisions. Current NH laws limit the criminal history info that an employer can ask about, but otherwise, does not limit their consideration of one’s criminal history when deciding whom they would prefer to hire.

Federal Protections For Those With Criminal Records

There are two specific federal laws that afford some protections to job applicants with DWIs on their criminal record.

               The Fair Credit Reporting Act

The Fair Credit Reporting Act was created to address the issue of inaccurate records. It is hard enough to be turned down for a job because of your actual criminal history, but some individuals are rejected because a criminal background check revealed another individual’s crimes or mistakenly includes expunged arrests or records that did not result in a conviction. A criminal background check can include errors, like incomplete information (e.g. the failure to report that an exonerated person had the criminal charges against them dropped), misclassification of a crime, info on convictions or arrests that were previously expunged, duplicate listings for the same offense, or even records of crimes that belong entirely to someone else.

This Act creates obligations prospective employers must follow when requesting criminal background checks and on the businesses who provide them. An employer must:

§  Obtain the applicant’s written consent beforehand.

§  Inform the job applicant if the prospective employer intends to disqualify them based upon the report’s contents. The employer must also provide the applicant with copy of the criminal report.

§  Offer the applicant notice once the employer has made a final decision not to hire them based upon their criminal background history.

Businesses that conduct background checks on applicants also have specific obligations under the Fair Credit Reporting Act. A firm must take reasonable steps to ensure that the info they provide is up to date and accurate. Should an applicant choose to dispute the report’s contents, then the firm must inform the applicant and any other individual or business to whom the report is provided.

               Title VII

Title VII of the 1964 Civil Rights Act protects both employers and applicants from discrimination in each element of employment, including hiring and screening practices. Because incarceration and arrest rates are significantly higher for Latinos and African Americans, a prospective employer who maintains a blanket policy of excluding any applicants with a criminal record could be found guilty of racial discrimination.

The Equal Employment Opportunity Commission has published guidelines that explain how an employer can weed out applicants who criminal history poses an unreasonable risk without falling prey to discrimination. In determining whether or not a DWI or other criminal offense should be a disqualifier, the employer must consider:

§  The gravity and nature of the criminal conduct or offense.

§  How much time has passed since the sentence or offense.

§  The nature of the job the applicant has applied for.

Furthermore, the EEOC has stated that employers should offer applicants with a criminal history the chance to explain the circumstances surrounding their case and offer mitigating info that demonstrates why the applicant should not be excluded because of their criminal history.

New Hampshire’s Laws On the Use of Criminal Records

New Hampshire’s state laws also afford a plethora of legal protections for job applicants with a criminal history. New Hampshire state law limits the questions an employer can ask about a job seeker’s criminal record. If the employer wishes to ask questions about a person’s criminal history, the question must be phrased in such a manner that follows similar wording “Have you ever been arrested for or convicted of a crime that has not been annulled by a court?” However, besides this limitation, an employer is not restricted in their consideration of a person’s criminal record when making hiring decisions.

DWI Criminal Records & Employment In New Hampshire

Having a DWI conviction on your record is a serious matter, particularly if your chosen profession involves frequent travel or commuting. For example, a professional long haul trucker who is convicted of a DWI could lose their CDL license, which is a required component for their job. Having a DWI on one’s record can affect a person’s ability to obtain professional licensure. This affects a wide range of professions, from nursing to those in the law profession. A prospective employer can use a DWI criminal conviction as grounds to decide not to hire you.

Of course, the ideal method of avoiding all of this trouble is to avoid a DWI conviction altogether. Our skilled and experienced New Hampshire DWI attorneys will work diligently on your behalf to have your charges dismissed. If this cannot be accomplished, then we will seek to work with prosecutors to obtain a plea bargain that offers a satisfactory outcome and enable you to avoid the expense of a trial. For a free consultation regarding your case, please contact our law firm today. Time is of the essence, so don’t delay.

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Guest Saturday, 26 September 2020