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Background Checks - What do Employers Really Need to Know?

Q. I have recently been offered a job contingent on my background check. The job is with a hedge fund, handling financially sensitive information (which I assume means they will perform a thorough background check). Would an open container ticket from 2008 in another state show up in the background check? Should I disclose it in the offer, next to the line stating, "Would you like to disclose any information prior to the background check?"

A. Congratulations on the job offer! Great industry and I applaud you for looking at the details involved in taking an offer to a fully successful close. People do have offers withdrawn for a host of reasons, and many people can’t believe this can actually happen.

Your goal is to make sure that the organization prepared to hire you has no obstacles in the way to making that happen. References and background checks are part of that assurance. Employers are sensitive to the backgrounds of their employees, and background checks can uncover small and large issues. Asking the question allowing you to “freely disclose” anything you might like to share can be frightening to people who may have small blemishes on their records.

I consulted with Attorney David Conforto, from Conforto Law Group, (confortolaw.com) a boutique law firm based in Boston specializing in employee legal support. Conforto reports “The timing of your offer is good! In August 2010, Governor Deval Patrick signed into law CORI Reform. This law became effective in November 2010 and restricts the criminal record information that Massachusetts employers can request from prospective employees even after the initial written application. Under the law, the employer's criminal background check cannot include: (1) felony convictions that have been closed for more than 10 years; (2) misdemeanor convictions that have been closed for more than 5 years; or (3) a prior first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace.”

There is great sensitivity in handling the issues and questions surrounding the offer and background check. Conforto recommends consulting with an attorney to make sure the job offer is contingent solely on a background check, preferably through e-mail. You need to ensure that you do not raise red flags by asking the question, and that your inquiry is seen as a clarification only. If the job offer is withdrawn, you will be certain it was solely because of the results of the background check.

Second, consult with an attorney in the state where the violation occurred to determine if it is considered a misdemeanor or a lesser offense. If it is a lesser offense, it should not be included as part of the background check. If the offense is, in fact, a misdemeanor, it is unclear at this point whether an open container violation satisfies the exclusion in the third prong as a ‘minor traffic violation’.

Always answer the questions on the background check truthfully. Do not raise issues, which do not need to be raised, and by doing your research prior to risking an offer, you should be able to pass the last screening step with no issues.

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