How Should I Answer Questions on a Job Application if I’ve Been Arrested?

October 14, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

It’s heartbreaking for me to hear current clients and folks who’d gone through some rough patches before be extremely excited about a potential job opportunity only to have the opportunity repeatedly crumble at the last minute over and over.

My Approach To Answering “How Should I Answer the Arrest Question”

First – I advise my clients they usually don’t have a duty to answer questions which aren’t asked depending on the job they’re applying for.  Many folks think they get brownie points for disclosing things they might not have to disclose – and in a perfect world this would be true.  My experience is the opposite, though.

It’s really important to read the question being asked, answer that question, and not answer questions which aren’t being asked.  It’s my experience many employers (and their lawyers) sometimes draft imprecise or clunky questions about previous arrests.  These are questions which might allow you to answer the questions honestly yet not require you to disclose your situation.

Remember your potential employer will also probably do a background check on you too.  You don’t want to get ‘too cute’ answering a question about your criminal history only to have the potential employer not hire you anyway.

Expunctions and Non-Disclosures are the best way to solve these problems.  An expunction allows you to deny the entire situation occurred in the vast majority of situations and a non-disclosure hides the affair from the public.

Quick Texas Guide to Background Check Questions

Have I Been Convicted?

Situations where the answer is “No”

  • If you were on deferred adjudication and successfully completed Deferred successfully for a felony or misdemeanor
  • If you are currently on deferred adjudication community supervision for either a felony or a misdemeanor
  • If your case is currently pending and you have yet to enter a plea
  • If you are waiting for your case to go to trial
  • If you went to trial and were found “not guilty”
  • If your case was dismissed for any reason

Situations where the answer is “Yes”

  • If you have ever plead guilty to a Federal offense
  • If you’ve gone to TDC or State Jail
  • If the judge found you guilty even if you were on probation

Have I Been Charged with an Offense?

“Charged” is a tricky word in these contexts.  What concerns me about the wording is I worry some may not agree with my interpretation or might not really understand what this term means.

To me, you are not “charged” with an offense unless or until the prosecuting authority (normally a District Attorney’s Office) files either an information against you in a misdemeanor or an indictment against you in a felony.

But we often hear on television or read in the newspaper someone was “arrested and charged with…..”  That’s usually not an accurate statement because normally the indictment or information follow an arrest weeks or months later.

So I do worry about folks who answer a background check question they have not been “charged” with an offense greater than a traffic ticket but who have been arrested – because the prospective employer might not understand the difference.

Overriding Advice

I always tell my clients – current and former – please call me with any questions about how to answer a specific question.

*Jeremy Rosenthal is board certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.  Nothing in this article should be considered legal advice.

Associated Press Finds Stunning Inaccuracies on Background Checks

December 22, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

Did you know 90% of employers do background checks since 9/11?  Criminal background searches are now a $2 billion per year industry and due to increased digitalization of court records — mom and pop background check companies are beginning to spring up.  They don’t seem to have the resources or desire to get things right.

And here’s the scary part — most of the leading background check companies wouldn’t even return the AP’s phone calls to discuss how many of their files were inaccurate.  They currently use automated systems which scrub online databases run by governmental entities with flawed formulas that misinterpret information the human eye might spot.  They commonly botch common names and stick the wrong people with criminal charges.  Many are also very poor at updating their information when criminal cases are expunged or non-disclosed.

You can read the article in it’s entirety here.  There are few articles out there that are must-reads.  This is one of them.

From a criminal defense lawyer perspective — fighting to keep someone’s record clean is pointless if some company who doesn’t care about what they report calls you a criminal anyway and costs you a job.

Another main point to take from the AP article is no one will care about making sure your criminal history is clean as much as you will.  Making sure you have a clean history is every bit as important as checking your credit score.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific situation, you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications sent through this blog are not confidential.

Petition for Non-Disclosure

March 15, 2010

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

A Petition for Non-Disclosure is an intermediate tool used to clean someone’s record.  It essentially hides your record from the public.  It is not as sweeping or as beneficial as an expunction, but it can lessen the blunt force of a conviction.

The Non-Disclosure statute is very complicated and is loaded with qualifications and exceptions.  What it means, in general, is that your criminal record stays intact (unlike an expunction where an arrest record is destroyed), but the state is limited in it’s ability to disseminate the information of your record to the general public.  As you can see by reading the statute, there are numerous agencies which are exempted from honoring the non-disclosure (such as professional licensing bodies), and there are tons of offense which don’t qualify for non-disclosures (such as sexual assault, stalking, and family violence affirmative findings).

Here is how it generally works:  If you plead guilty and are placed on deferred adjudication, you may be eligible to file a petition for non-disclosure two years after the date of your Tex.Code.Crim.P. 42.12(5)(c) dismissal on misdemeanor cases and five years after the dismissal of your felony.  Your petition is discretionary meaning the prosecution can fight it and you must prove to the judge that granting it is in the best interests of justice.

The code was recently amended to allow for immediate non-disclosure of most misdemeanor offenses after successfully being discharged from deferred adjudication.

The benefit of a petition for non-disclosure is that your criminal record shouldn’t be readily available to private companies that do general background searches.  The downfall is that they can be challenging to get and even though the information s difficult to attain, it hasn’t been destroyed as with expunctions.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For legal advice you should always consult an attorney.