Thank you all for all the support! So happy to be up late helping all of you that deserve it so much!
Thank you all for all the support! So happy to be up late helping all of you that deserve it so much!
Tonight, at the first moment of Friday, July 15th, 2016, tens of thousands of Kentuckians will be eligible to begin the process of clearing their record. The Unconvicted.com team will be staying up late tonight to ensure that all of our clients who have waited so long for this moment will be at the front of the queue in the certification process. Kristina Goetz of the Courier-Journal did another excellent article about the expungement process and Unconvicted that you can read here.
I would like to thank all of our clients for being so patient in this process. Know that the tiny sacrifice we are making to stay up late tonight pales in comparison to the unnecessary suffering you all have received as a result of your felony sentence. It is truly an honor and privilege to represent every one of you. Know that I am so excited about clearing your records and seeing how far you can go once this weight has finally been removed.
That being said, LET’S GO!
When you apply for a job and get an interview, your potential employer will likely do some extra research on you, including a background check. Employers must comply with federal law when they use a company to run a background check. (The law doesn’t apply if the company uses a background check furnished by the government.) If an employer or the company running the background check does not follow federal law, then it could face both civil and criminal liability.
The Fair Credit Reporting Act
The Fair Credit Reporting Act (FCRA) is the federal law that governs companies that provide background checks to employers and the employers requesting the background checks. The FCRA was created to ensure that consumer reporting agencies (CRAs) report accurate information about consumers (including potential employees) to potential employers, insurers, etc. It protects potential employees from having their privacy violated and from having inaccurate information provided to employers by CRAs. The FCRA also protects potential employees from employers, if the employer uses the potential employee’s information in an impermissible way.
FCRA Requirements for Employers
The FCRA sets forth requirements for both CRAs and employers. Employers must have a permissible purpose for getting information about a potential employee from a CRA. This means employers must only use background information to make employment decisions, which includes promotions of current employees as well as hiring new employees. It is not permissible for employers to use background information to discriminate against a potential employee based on race, religion, sex, age, national origin, color, disability, or genetic information. When requesting a background check, the employer must first inform you in writing separate from your application that the background information may be used to decide whether you hire you. 15 U.S.C. § 1681k. The employer is also required to get your written consent in writing to run a background check on you, which may be part of the written document used to inform you about the background check. Furthermore, if an employer uses the information from your background check to decide not to hire you, to fire you, or not to promote you based on any information in your background check, then they must inform you and give you three specific pieces of information:
FCRA Requirements for Credit Reporting Agencies
The CRA running a background check on you for the employer must comply with certain FCRA requirements. The CRA must use “reasonable procedures” to protect “the confidentiality, accuracy, relevancy, and proper utilization” of the potential employee’s information contained in the background check. 15 U.S.C. § 1681e. CRAs must not report background information to employers that do not have a permissible use for the information.
Sometimes CRAs gather the information complied in background checks from entities known as “furnishers.” Furnishers must also comply with the FCRA and provide accurate information to CRAs.
What happens if the employer, CRA, or furnisher fails to comply with the FCRA?
The FCRA provides civil remedies to people who sustained damages as a result of an FCRA violation. If an employer, CRA, or furnisher willfully violates the FCRA, they are liable to the potential employee for damages between $100 and $1,000. If an employer obtains a background check “under false pretenses or knowingly without a permissible purpose,” then they are liable to the employee for damages of $1,000 or greater. The court may also impose “punitive damage” upon the entity that violated the FCRA. In addition, if you win a civil action under the FCRA, the judge may also force the employer, CRA, or furnisher to pay “reasonable attorney’s fees.” 15 U.S.C. § 1681n.
If an employer negligently violates the FCRA, the potential employee may recover “actual damages sustained . . . as a result of the failure” to comply. If the potential employee is successful in recovering damages from the employer, then reasonable attorney’s fees may be awarded by the judge. 15 U.S.C § 1681o.
We know the FCRA is complicated, and we want to help you protect your rights. If you think an employer turned you down based on information in your background check, do not hesitate to contact us at Unconvicted or call 888-400-5730.
Many of you have probably already seen this video on Facebook (if you haven’t liked us on Facebook yet, click here), but I wanted to make sure you all had an opportunity to see our first web video. We will be rolling out more throughout the summer to help explain the expungement process to everyone. I’ll be honest, I felt a bit funny when we shot the video, but I’m quite happy with how it turned out, and I look forward to continuing to advocate for expungement rights in every form of media.
If you have ever been convicted of a felony, you know your penance does not end when you finish your sentence. Your conviction follows you like a shadow and prevents you from living your life to the fullest. Despite your felony conviction, you may still be eligible for many government assistance programs unless your conviction involved use, possession, or distribution of drugs.
Kentucky’s Department of Public Advocacy compiled the collateral consequences convicted felons may encounter in Kentucky. The following information is a condensed version of their material:
If you have been convicted of a felony, you may still be eligible for public housing. However, your local Public Housing Authority (PHA) is required by federal law to prohibit you from getting public housing if anyone in your household has ever been convicted any crime related to manufacturing or producing methamphetamine or if someone in your household currently uses illegal drugs. Furthermore, if anyone in your household is required to register as a sex offender for life, then you are not eligible for public housing. Additionally, federal law permits your local PHA to prohibit you from getting public housing if anyone in your household has ever been involved in drug-related criminal activity, violent criminal activity, or any other criminal activity that might negatively affect your potential neighbors.
If you are a convicted felon, you are eligible for SNAP unless the crime you were convicted of involved distribution, use, or possession of a controlled substance. However, if you have a drug addiction and have completed, or are currently in, a drug treatment program, then you may be eligible for SNAP. Additionally, if you committed a crime involving controlled substance and are pregnant, you are eligible for SNAP.
A felony conviction will not prevent you from from receiving benefits from K-TAP (Kentucky Transitional Assistance Program) unless the offense committed involved selling, using or possessing drugs.
Convicted felons are eligible for Social Security. There are two exceptions. You are ineligible for Social Security if you are currently incarcerated. You are ineligible if you flee to avoid prosecution or custody for a felony offense.
Student Financial Aid
If you have been convicted of any offense (misdemeanor or felony) involving possession or sale of drugs, then you are to receive federal student aid, including grants, loans, or work assistance, for a specified period of time. If your conviction involved possession, you are prohibited from receiving federal student aid for one year after your first offense, two years after your second offense, and an indefinite period of time after your third offense. If your conviction was for distribution, then you are ineligible for two years after your first offense and an indefinite period of time. In order to become eligible for student aid after the specified time period, you must complete a drug rehabilitation program. Persons who are registered sex offenders are not eligible for Pell Grants. In order to receive funding from Kentucky’s Go Higher Grant Program or the Commonwealth Merit Scholarship Program, you cannot be a convicted felon.
Other Government Aid
Similarly, you are ineligible for other forms of federal financial aid, such as loans or grants if you were convicted of distribution or possession of controlled substances. If you were convicted of distribution, you are ineligible to receive government loans or grants for for up to five years after your first conviction, up to ten years after your second conviction, and you are ineligible permanently after your third conviction. If you are convicted of possession, the sentencing court gets to decide if you are not eligible for federal grants and loans for up to one year after your first conviction. For subsequent possession convictions, you the court may decide you are ineligible for up to five years.
However, if you declare yourself as an addict and go to long-term treatment, the period of ineligibility may be waived. Even if you try to go to treatment and it’s inaccessible or unavailable, the judge may still waive ineligibility for government aid.
Collateral Consequences in the News
In response to the harsh consequences that follow convicted felons around long after their sentences have ended, a federal judge in Brooklyn refused to sentence a woman to prison as reported by the Wall Street Journal. The woman was arrested for having 600 grams of cocaine in her luggage at an airport. Instead the judge sentenced the woman “to one year of probation, to include six months of home confinement and 100 hours of community service.” The judge’s goal was to prevent her from facing harsh consequences long after her sentence was over. The judge said that denial of housing, loans, and jobs served “no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.” There are around 50,000 state and federal statutes and regulations that further punish convicted felons after they finish their sentences. In Kentucky alone, there are 921 statutes and regulations that impose restrictions of felons. This case was but one small ripple in the sea of collateral consequences for convicted felons. It will take federal and state legislative reform to alleviate the burden of being punished long after a sentence is over.
If you have been convicted of a possession misdemeanor and even some low level possession felonies, you may be eligible to expunge your record and become eligible for certain government assistance programs. At this time, only misdemeanors for trafficking of controlled substances are eligible for expungement. For a free evaluation to determine if you are eligible to have your record wiped clean, visit us at Unconvicted for a free evaluation. If you have any questions, do not hesitate to contact us.