Background Checks — Getting the Past Right
By Brian Carnahan
Possibly you had a "youthful indiscretion" that led to a night in jail and probation, or something more serious occurred that led to prison time. Involvement with the criminal justice system can impact the opportunities for someone seeking a license to pursue a career. In recognition of this challenge, "ban the box" movements that seek to eliminate the negative impact of upfront criminal background questions in employment applications, thus helping smooth the transitions to work, have developed, making this an issue at the top of many policymakers' agendas. At the same time, many occupational licensing boards and employers are witnessing increasing applications from persons with substance use-related offenses or other felonious offenses, ensuring that questions of criminal background are not disappearing.
Are you barred from working in the behavioral health field if you have a criminal conviction? Not necessarily. The helping professions believe in change and growth, so members of licensing boards for these professions are often very understanding, but also realistic, and aware of their responsibility to focus on public protection, not the needs of an individual applicant or licensee. The reality of additional review and decision making about the past can be difficult to accept because the applicant believes she/he knows her/himself and fully expects that the past is in the past—what occurred before will not occur again. While that type of confidence is important, a case must be made that there will be no reoccurrence. While each state has different requirements, there are some steps you can take to improve your opportunity to work in the field of your choice if you have a criminal conviction.
The first step is to understand what your jurisdiction requires, such as the type of background check or disclosures of current or prior involvement with the criminal justice system. A state or FBI background check may be required. Further, the jurisdiction may require you to disclose all prior convictions. Being truthful is important. The Ohio Counselor, Social Worker and Marriage and Family Therapist (CSWMFT) Board, for example, requires applicants to complete a background check that encompasses violations reported to FBI and state databases. Applicants who are not truthful on applications and are subsequently questioned because a conviction is found on their record compound their problems. What might have involved explaining a relatively minor issue now becomes a discussion of the applicant's omission and possible dishonesty.
Jurisdictions have varying requirements regarding how criminal offenses impact licensure. Some boards follow laws and rules that outline specific disqualifying convictions; others have a standard that is open to interpretation based on the facts and circumstances of the conviction. In Ohio, applicants to the CSWMFT board must be of good moral character. The board is empowered to deny a license to persons without such character or who have been convicted of an offense involving moral turpitude, which encompasses a number of possible offenses.
Those with a prior conviction should consider contacting the jurisdiction before applying for a license. While the board likely cannot specifically tell someone whether they can be licensed, we can discuss parameters for board decision making as well as discuss prior decisions. This information may help the potential applicant in making a decision regarding seeking a license or even a degree in a field that will qualify them for a license.
Consult an Attorney
Consult an attorney to determine what your rights and responsibilities are with respect to licensure laws and general employment laws. Some jurisdictions offer protections for persons with previous criminal convictions. While the board may be able to explain some aspects of the law, they cannot provide legal advice.
Be prepared to explain the criminal convictions or interactions with the justice system. Such explanations should cover any specific board requirements. The explanation should be factual and honest. Taking responsibility is critical. Board members and staff are used to seeing these explanations and will readily identify anyone who appears to be trying to creatively write him- or herself out of trouble. Depending on the conviction and when it occurred, the explanation may have to be accompanied by any documents from the court indicating that all requirements related to the conviction were completed, e.g., probation or parole terms were met and fines or restitution were paid. Other important documents include reference letters from persons who supervised you in an internship or practicum and can vouch for your competent professional behavior. You may request letters of support that confirm that you have resolved the issue that resulted in the criminal offense, such as a counselor who can confirm that you have successfully completed treatment.
What happened? How was it resolved? What have you learned? Each of these questions should be addressed in your personal statement or explanation. Use your skills to explain the issues and how you have moved forward and how others will not be at risk because of your role in providing services requiring a license. The explanation should be honest and reflect your understanding of the crime you committed.
You may be required to discuss prior convictions again at a hearing if the license is denied. This is a time when obtaining legal counsel is especially useful. The board denying the license will be represented by an attorney. Having your own representative can help you create the most effective response to the denial. Hearings offer an opportunity to answer specific questions and demonstrate, in person, the qualifications and capacity to work in the field without being a risk to the public.
After licensure, you will be required to disclose criminal convictions, so be aware that future convictions could place your license and job in peril. Each state sets its own standards regarding what types of convictions might place a license in jeopardy. Convictions in the course of practice, or that demonstrate a risk to the public, will be treated more seriously than other convictions. Nonetheless, it is important to take great care.
Recognize that education programs may impose criminal background standards. Education programs have a responsibility to ensure that persons they are educating for a licensed profession will be able to obtain a license. Critically for these programs, they have to determine whether persons with criminal convictions will pose a risk for the education program when the student is completing an internship or practicum. Addressing past issues with your education program will be good preparation for the licensure process. Yet, the fact that an educational program accepted you knowing you had a criminal background and even the fact that you graduated from that program is not a guarantee that your license will be approved. You will still need to explain the situation in your licensure application, and various standards will apply.
Occasionally, a potential applicant or a licensee will contact us about finding employment, concerned that a conviction will be a barrier. The reality is that obtaining a license is not a guarantee of employment. Each employer has a responsibility to assess the background of a potential employee and determine whether it is appropriate for its workplace. An employer could impose a higher standard than the state board, based on the type of crime committed or the work the licensee is expected to perform.
While the past cannot be erased, taking the steps above can help to improve your opportunity to obtain a license in a behavioral health care-related field.
— Brian Carnahan is executive director of the State of Ohio Counselor, Social Worker and Marriage and Family Therapist Board.