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  1. #1
    Wanttomakeit Guest

    Unhappy Denied employment

    I currently reside in the state of Georgia and I was recently denied employment on the basis of a Consumer report. The report was conducted by Peoplewise reporting agency. I was covicted of a misdemeanor in June of 2000. I was given one year probation and allowed the first offender plea. After the completion of my probation in June of 2001, I was then exonerated of all criminal charges and mail a letter stating that I can not be denied employment based of this charge. When contacted by the would be employer, they stated that I was denied employment solely on this basis and falsifying information on the application. The application read "HAve you ever been convicted of a misdemeanor or do you have any pending court cases." Fortunately, I do not have any pending cases and because I was exonerated from all charges involving the previous case I do not have any convictions. Can this happen?
  2. #2
    cbg
    cbg is offline Senior Member
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    You were not denied employment because you had a misdemeanor conviction on your record; you were denied employment because when you were asked if you had a misdemeanor conviction on your record you said, no, instead of, yes.

    The fact that you successfully completed your probation does not turn a conviction into a no conviction. The correct thing to do would have been to complete the application stating, yes, to the conviction question and explaining the situation in the space provided. (There is ALWAYS a place to explain the circumstances.)

    Nothing turns an employer off faster than the appearance of a lie from a prospective employee.
  3. #3
    Wanttomakeit Guest

    Denied Employment

    The conviction is not on my record. Upon completion of probabtion, I was exonerated from all criminal charges. The letter I received states that this incident cannot be considered as a conviction and does not have to be repoted because of the first offender status. The only thing that should appear is the arrest.
    The question did not ask had I ever been arrested. I have attached the law.



    42-8-62 G *** CODE SECTION *** 12/03/01 42-8-62. (a) Upon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement, the defendant shall be discharged without court adjudication of guilt. Except for the registration requirements under the state sexual offender registry, the discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties; and the defendant shall not be considered to have a criminal conviction. It shall be the duty of the clerk of court to enter on the criminal docket and all other records of the court pertaining thereto the following: "Discharge filed completely exonerates the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties, except for registration requirements under the state sexual offender registry; and the defendant shall not be considered to have a criminal conviction. O.C.G.A. 42-8-62." Such entry shall be written or stamped in red ink, dated, and signed by the person making such entry or, if the docket or record is maintained using computer print-outs, microfilm, or similar means, such entry shall be underscored, boldface, or made in a similar conspicuous manner and shall be dated and include the name of the person making such entry. The criminal file, docket books, criminal minutes and final record, and all other records of the court relating to the offense of a defendant who has been discharged without court adjudication of guilt pursuant to this subsection shall not be altered as a result of that discharge, except for the entry of discharge thereon required by this subsection, nor shall the contents thereof be expunged or destroyed as a result of that discharge. (b) Should a person be placed under probation or in confinement under this article, a record of the same shall be forwarded to the Georgia Crime Information Center. Without request of the defendant a record of discharge and exoneration, as provided in this Code section, shall in every case be forwarded to the Georgia Crime Information Center. In every case in which the record of probation or confinement shall have been previously forwarded to the Department of Corrections, to the Georgia Crime Information Center, and to the Identification Division of the Federal Bureau of Investigation and a record of a subsequent discharge and exoneration of the defendant has not been forwarded as provided in this Code section, upon request of the defendant or his attorney or representative, the record of the same shall be forwarded by the clerk of court so as to reflect the discharge and exoneration.



    Except as otherwise provided in this article, a discharge under this article is not a conviction of a crime under the laws of this state and may not be used to disqualify a person in any application for employment or appointment to office in either the public or private sector.
    Last edited by Wanttomakeit; 05-10-2002 at 01:11 PM.
  4. #4
    justathought Guest
    I (repectfully) disagree with cbg--and hope I'm not wrong! Please--Anyone from GA, back up or dispute what I found regarding the First Offender Act!?

    Poster, did you apply for a job in GA? Was it in the public or private sector? Was there anything job-related to the misdemeanor (I.e. it was for DUI and you're applying to be a driver, or petty theft and you're looking for security clearance)? Did the application make any reference to whether or not anything under the First Offender Act was or was not covered? You may have to contact the reporting agency and dispute your status to have it removed. I'm sure they report the conviction, but probably aren't so quick to report the reversal.

    cbg--I don't mean to jump in, but apparantly Georgia has a funky law called the First Offenders Act. I guess (from what I've seen on the web) if one successfully completes probation for a misdemeanor, it *does* become a non-conviction. Bizzare, but seemingly true? Applications I've seen from the Georgia area have a blurb that state that you don't have to answer yes if it falls under the FOA unless there's special circumstances (i.e. applying for a driving job and having a DUI--Or perhaps public sector because of clearance). Hope I didn't step on your toes! And I hope maybe you have more up to date info regarding this so you can clarify what I'm rambling about!
  5. #5
    justathought Guest
    Whoops! I posted while you were editing!!

    If you were denied for this reason, you need to dispute it with the reporting agency. I don't believe the employer can be held liable because they were acting in good faith based on records available to them. However, if you dispute it with the agency and they *don't* remove it (they do have time to respond though)--then they might be liable for future employment denial.

    Good luck to you.
  6. #6
    cbg
    cbg is offline Senior Member
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    Well, it's been a while since I had employees in GA. Maybe this is new since then.

    However, I stand by my response that it would have been preferable, even if not legally required, for you to explain to the employer what they were going to find on the background check. In employment law perception is very important, and there's no question that there was a perception of falsity here.
  7. #7
    Beth3 is offline Senior Member
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    But the records are not expunged, which means a history of the incident still exists.

    The statute Wanttomakeit sites prohibits the employer from disqualifying someone from employment on the basis of the conviction. But that is not the case here. They disqualfied him on the basis that he did not answer the question on the application accurately. He was convicted of a crime and then exhonerated because he served whatever sentence the court imposed. That's different than never having been convicted at all. We're splitting hairs here of course but that is most frequently what a legal issue turns on.

    Wanttomakeit, since GA has a very unique statute on this, I'd suggest you contact the GA Department of Labor and get their opinion on your situation.
  8. #8
    Wanttomakeit Guest
    I contacted the Georgia Bureau of Investigation sand they told me I was correct in not reporting it. The incident was not expunged because it still shows as an arrest, it just does not show a conviction under this law. How the agency got this information I don't know because I pulled my own record and did not see the conviction. The question on the apllication stated, " Have you ever been convicted of a felony or misdeamor or do you have any pending cases?
  9. #9
    Beth3 is offline Senior Member
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    Wanttomakeit, at this point you'll need to consult with an attorney practicing employment law in GA for expert legal advice.

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