Desperate for Answers

[Beifakah]

I am currently a 26 year old resident of Pinellas County Florida. This is my dilemma.

I was gainfully employed by a company that specializes in the repair/installation of restaurant and retail outlet networks. I am, somehow, still employed with this company but it is not for gain. Allow me to explain.

On December 14th (Friday) I had just finished with my third and final week of acclimation with the software and hardware and had begun to go solo, I was quite enthralled and had many prospects for a lucrative future. At around 3pm I was called into the HR office and told that I had falsified a part of the application and risked termination. There was an entry when I had applied which asked if said applicant was a convicted felon, I put no. Only after I had been with the company for these weeks did they finally do one and I was charged with possession of a small amount of narcotic last year and am just finishing probation. The charge was a felony, however, I completed a special program offered here and therefore adjudication was withheld. I know its different from being expunged but I was told that my legal rights would not be revoked, I could vote, and was informed explicitly by both my probation officer and the judge that I did not have to check yes on that application due to not having to register myself as a felon. The HR officer seemed compassionate and decided to put me on admi leave while they did some research on it. I promptly went home, called my probo and not only verified that I wasn't mistaken but obtained my signed papers when I agreed to enter the program and the part that said 'withholding of guilt'.
Should have all gone smoothly, and it began well even. That Monday (21) I received a prompt email reply that amounted to the HR officer saying that she was going to get clarification and hoped that it could all be put behind us soon. Then I hear nothing for many days. My attempts to reach her by phone and email prove fruitless. Eventually (the 28th) I got fed up with making excuses that she was on vacation for Christmas and asked the operator to connect me with the Director of Operations. He informed me (to my surprise) that the HR officer had been let go and was direct with my question of where do we go from here? He sounds friendly and cheerful, once again the compassion, says that he will have to pull my file and get back to me no later than the end of the week. That was a Thursday. Friday comes and I call, getting his voice mail and politely asking him to get back to me as soon as he can. New Years comes and goes- Wednesday comes, no call no email, I leave another nice but direct VM. Thursday rolls around again. Then Friday, and I uncover his email address thru a google search and figure if VM is failing maybe he checks his email. This time I am pragmatic but insistent and concerned and lay out a summary to him. I also tried to contact a co-worker thru email with no success. This is quickly turning into my worst nightmare! I am apparently still with the company but why would a place that prides itself on integrity and responsibility completely ignore me? I feel like my rights are surely being violated and come Monday would like to weigh my legal options as a last resort. All I want is my rightful position! Please enlighten me dear reader.

 

[JETX]

First simple answer:
Your 'rights' are not being violated. There is no Constitutional RIGHT to a prompt response by an employer.

Second simple answer:
Your employment application asked if you have ever been convicted of a felony. You answered no when you had in fact been convicted of a felony. The fact that you might have "completed a special program offered here and therefore adjudication was withheld" does NOT affect your conviction... especially if that 'program' (probation??) has not been completed yet.

 

[Beifakah]

I have read through documentation on Florida law and was told both by my probation officer and the judge that although in my case I am not "convicted" of the crime although they are still found to be guilty of the crime. Some states use this term in place of nolo prosequi, which means unwilling to prosecute. There needs to be no final judgment as an "expunged" charge would have. Employment verification has the right to pull this information BUT the terminology of whether I would have to 'check' convicted on an employment application would only be founded if I was a 'registered' felon. Now certainly if I had known what I know now I would have been more forthcoming with the information but I have already explained this to them.

The point is that they left me hanging in the cold, not terminated, but they won't even respond to me and this has caused considerable personal and financial distress.

 

[eerelations]

Whether or not you have a felony conviction, whether or not you lied on your application, as long as you're in an employment-at-will situation (and you most likely are), it's within your employer's legal rights to terminate your employment for having a "maybe-it's-a-felony-maybe-it-isn't-a-felony" record in your background.

Esteemed colleagues, please correct me if I'm wrong. Thanks.

 

[JETX]

I have read through documentation on Florida law and was told both by my probation officer and the judge that although in my case I am not "convicted" of the crime although they are still found to be guilty of the crime.

Unless you are somehow 'special', it doesn't matter what you have read. Any normal 'plea bargain to a lesser charge' would include a specific probation period where you are to 'prove' your conduct to the court. This period must be completed PRIOR to any dismissal of the charges. Simply, if you don't get 'straight', your original charge is reinstated.

Some states use this term in place of nolo prosequi, which means unwilling to prosecute.

Yep.... but that only applies AFTER the required probation is completed.

Employment verification has the right to pull this information BUT the terminology of whether I would have to 'check' convicted on an employment application would only be founded if I was a 'registered' felon.

No such thing as a 'registered felon'. Either you are one... or not.

Now certainly if I had known what I know now I would have been more forthcoming with the information but I have already explained this to them.

Isn't it amazing how "I would have told" comes so quickly when you're caught, huh??

The point is that they left me hanging in the cold, not terminated, but they won't even respond to me and this has caused considerable personal and financial distress.

So what? As I already said, there is no legal obligation for them to tell you anything. Show up for work as scheduled. If they tell you to leave as you are no longer an employee..... you have your answer.

 

[Beifakah]

Clearly though this is an issue of an infringement on my right to fair treatment. I just received my 'pink slip' in the mail but not only the (now fired) HR officer but the Director of Operations led me to believe that this would be worked out. These three weeks have devastated me financially. I was told during training that criminal background checks had been done on all three of us that had been hired, and would have testimonial from the others if need be. Then my probation officer made a phone call to the HR stating who she was and who she spoke for. Two weeks later I was told I had falsified documents and that was the SOLE reason I was put on leave, I just spoke with two attorney's who corroborate what both my probation officer and the judge said. On a question as simple as have you been convicted of a felony, I do not need to answer yes, because if you look a bit closer I retain more than just my voting rights.

Oct 19 2000 the Supreme Court made an amendment to the Florida rule of criminal procedure:

It would be my suggestion that the term "convicted" and
"sentenced" in newly amended Rule 3.850(a) be defined
to reflect whether an adjudication withheld and
probationary term imposed by the trial court would be
-2-
covered by the newly amended rule.


Furthermore the 11th Circuit Court of Appeals ruled in 1995:

This case presents an issue of first impression in this circuit: whether the determination of what constitutes a "conviction" for purposes of a sentencing enhancement under section 841(b)(1)(B) is a matter of federal law or state law. Section 841(b)(1)(B) provides for an enhancement of a defendant's sentence to a mandatory minimum term of ten years imprisonment if he or she committed a violation of 21 U.S.C. § 841(a)(1) "after one or more prior convictions for an offense punishable under this paragraph, or for a felony under any other provision of this subchapter or subchapter II of this chapter or other law of a State, the United States, or a foreign country relating to narcotic drugs, marihuana, or depressant or stimulant substances, have become final...." 21 U.S.C. § 841(b)(1)(B). Mejias contends that a plea of nolo contendere where adjudication is withheld is not a "conviction" under Florida law, see Garron v. State, 528 So.2d 353, 360 (Fla.1988), and, therefore, that an enhancement under section 841(b)(1)(B) is not warranted. In support of this assertion, Mejias cites two federal district court cases that apply state law and hold that a plea of nolo contendere followed by a withholding of adjudication is not a conviction under 18 U.S.C. § 922(g)(1), the Federal Firearms Statute. [2]

(g) It shall be unlawful for any person-

(1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year; to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g)(1). United States v. Thompson, 756 F.Supp. 1492, 1497-98 (N.D.Fla.1991); United States v. Lester, 785 F.Supp. 976, 977-80 (S.D.Fla.1991); see also United States v. Smith, 856 F.Supp. 665, 666-667 (S.D.Fla.1994) (applying Florida law and holding that a plea of nolo contendere with adjudication withheld is not a conviction for purposes of an enhancement under section 841(b)(1)(A)).


Oh and on top of that, he says in this letter that I am being fired from a BACKGROUND CHECK. Not even the falsification, but they knew clearly about my probation and by the words of the HR the felony as well. And the icing on the cake was that the background check was supposed to be attached but all it was was the material I sent them at the beginning of all this. I was ignored, lied to, and if I hadn't got back ahold of them I would have never been formally terminated, merely swept under the carpet.

 

[ecmst12]

And you know, none of that is illegal. Sorry dude, time to find a new job. They can fire you because they don't like what turned up on your background check, and they can take as long as they like to make the decision.

 

[eerelations]

Clearly though this is an issue of an infringement on my right to fair treatment.

You have no legal right to fair treatment.

And, as you've been told over and over, your employer has done nothing illegal. You can continue to ask again and again and again, but the answer will be the same, each and every time - the legality of your employer's actions doesn't depend on how many times you ask about it.

 

[Gadfly]

This posting showed us a lot about you and your ability to accept a decision you don't agree with.

If you argued with your employer (the organization you wanted to work for and was going to pay you) in the same way you argued with us (the people that were willing to give you thier time and knowledge for FREE) maybe they decided you wer too much of a pain to have around.

 

[Hot Topic]

You were charged with possession of a narcotic. Everything that happened afterwards is the result of your decision to break the law. You have no one to blame but yourself.

Next time, check the box "yes," and write a brief explaination. Offer copies of documents that buttress it.

 

[Beifakah]

I appreciate all of the responses. Perhaps I knew all along that I was stuck in a thick situation and allowed my emotions to get the best of me. Perhaps my only resolution is to learn from this experience and get my records sealed. I was more than cordial with the company but that was not enough, that and I'm probably one of the reasons the HR director got canned as well.

 

[HomeGuru]

I appreciate all of the responses. Perhaps I knew all along that I was stuck in a thick situation and allowed my emotions to get the best of me. Perhaps my only resolution is to learn from this experience and get my records sealed. I was more than cordial with the company but that was not enough, that and I'm probably one of the reasons the HR director got canned as well.

**A: good luck to you.