Violation reported as misdemeanor for background check

[John B. Goode]

What is the name of your state (only U.S. law)? NY
Hi, I am 44 years old, a recent college graduate, and am seeking employment in the white collar world. My former jobs were all blue collar types, mechanic, construction worker, truck driver, etc. which required no background investigation. The type of jobs I've been applying for now do, mostly education- middle or high school teaching positions. I had great difficulty finding anything but did get a job as a substitute teacher, the HR director called to talk to me about my troubling "misdemeanor" charge. This 1985 Violation, possession of marijuana, was reduced from the original misdemeanor offense, and I now have in my possession the certificate of disposition and a copy of the background report stating "misdemeanor-conviction". This certificate and the information supplied for the FBI background investigation both come from the same court, Suffolk County NY. I believe that the inaccurate reporting of this offense has made it extremely difficult, if not impossible, to find a job in the education field. In the last 25 years I have married, had children, put myself through college, graduated Summa cum Laude, am a member of 4 different honor societies, have one of the highest teacher subject area test scores (PRAXIS) reported in the last 15 years and received an award for this, and yet this is all more than balanced out by my "misdemeanor". I am now saving up to go bankrupt, may be facing foreclosure, and have suffered serious financial repercussions because of my inability to find employment. I would like , at the minimum, to have the record expunged, but would now like to sue for slander. This court does not know how to search their own records?
I have mailed a letter to the Clerk of the court asking for expungement of this record. Although it has only been one week now I would like to know what should be me course of action should she fail to answer, or comply with my request, and do I have a case for a slander lawsuit, or negligence, and is the court protected by sovereign immunity? I understand from researching the internet that knowingly reporting false information for these background checks is a federal offense, is this true? Thank you for your carfeul consideration and response on this matter.

 

[You Are Guilty]

What documentation do you have to show it was reduced to a violation?

 

[quincy]

First, I recommend that ALL people looking for a job do their own background check on themselves before applying for a job. It is not at all unusual for errors to appear. If you are aware of the errors beforehand, you can address these with your prospective employer or on the job application until the proper corrections are made and reflected on your background check reports.

You do not have a slander case here, John. What you DO have is some work ahead of you to get the changes made in your criminal history/background check report.

You start by contacting the Suffolk County Court where the error, apparently, originated. Take your disposition papers with you and the Court Clerk will enter the changes and update the Court's database. It appears that the Court did not update your record to show that the original marijuana charge was reduced from the misdemeanor, which is why it appeared in the background check, or it is possible that the background check company "mined" your arrest records prior to the court reducing the charges.

Also contact the background check company and have them make the necessary corrections to your report. Background check companies are governed by the Fair Credit Reporting Act - so you follow the same steps necessary in making corrections with the background check company that you would when correcting credit reporting agency errors.

Finally, get your record expunged. This probably should have been done years ago, but it is important that you do this now, especially since you are looking for a job in an education field. A letter sent to the Court Clerk will not get the record expunged. There are forms available at the Court for you to fill out and submit.

Errors happen, John. It is only if these errors are not corrected once notified, in the time required by law, that you would have any sort of legal action against the people/companies involved.

 

[xylene]

Sadly NYS is in the midst of an economic meltdown, budget fiasco and educator pogrom, so that too may be why you can't get a job.

 

[KeyWestDan]

First it is not a federal crime unless the information is coming from NCIC. NCIC can not be used for employment purposes, it can only be used for legitimate law enforcement purposes.

However, if there is incorrect info in NCIC you need to go to their site and follow the instructions to get a copy of your NCIC file. You can then challenge it and perhaps have it corrected.

The same thing applies to the CIC system of the state the offense is in.

Then you need an attorney to see if you can do an expungment or get the record sealed at the source.

Then you need to contact the private companies that obviously got your offiense information and have it in their databases and demand it be expunged.

If an employer or potential employer brings it up they should tell you where they got the information from.

85 is pretty old. I would argue that is pretty stale information and is no reflection on your character, attitudes or behavior now.

 

[quincy]

KeyWest, criminal records are public records. They can be accessed. Criminal offenses will show up on any background check.

When a background check is an FBI one, which uses a fingerprint check, additional records are available - including sealed and expunged convictions and charges that ended in dismissal and arrests that did not result in any charges being filed. The above information will not be available in a regular background check (unless the data was mined prior to sealing, expunging or dismissal - which has happened in the past).

In addition, anyone can do an NCIC check on themselves, but you cannot do an NCIC check on someone else. These are not records available to the public.

Errors happen and background reports often reflect these errors. It is a pain to get them corrected, but it is important to do so - or at least be armed with the correct information to provide to an employer if you know erroneous information will appear.