By the time he applied for employment with IBM in New York, Mr. Obabueki had dismissed his 1995 conviction under California Penal Code § 1203.4. So, in reliance on his attorney's advice, he stated on IBM's criminal record questionnaire that he was never previously convicted of a crime, but Choicepoint reported the dismissed conviction to IBM. IBM asked Mr. Obabueki about the conviction, and he showed them a copy of the court order dismissing the conviction. IBM subsequently denied him employment, and Mr. Obabueki sued both IBM and Choicepoint under various New York state employment laws and also under FCRA.
The district court held in Obabueki v. IBM that IBM could not be held liable under New York laws protecting job applicants with conviction history, because their decision not to hire Mr. Obabueki was based not on the precise meaning of 1203.4 (that is, whether he in fact had a conviction record), but on the discrepancy between 2 pieces of information Mr. Obabueki provided them (that is, "a lie"). According to IBM, the discrepancy (and the reason they didn't hire him) was between his initial denial of the conviction and the language of the court order granting a 1203.4 dismissal. In Obabueki v. Choicepoint, which resulted in a jury award against Choicepoint, the court vacated the jury verdict and granted Choicepoint's motion for JNOV, holding that the denial of employment was due to Mr. Obabueki's "lie," not Choicepoint's violation of various FCRA provisions.
So what are some of the lessons we can learn from these cases?
Lesson 1: Be consistent.
If you're going to trust the employer's compliance with Title VII and so disclose your dismissed convictions, do so each and every time they ask you. If not, you should never contest what shows up on the background check report with the employer. Deal only with the background check company. In other words, don't give the employer more than 1 version of your past history. This applies especially if you, like Mr. Obabueki, are applying for employment outside California, where 2 CCR 7287.4 prohibits employers from even asking about misdemeanor convictions dismissed under 1203.4.
Lesson 2: Be proactive
Under FCRA and ICRAA, you have a right to inspect what the background check company has on you at any time. Find out what background check company your prospective employer uses. They may not tell you before you apply. That's fine. But they have to tell you the contact info of that background check company, including phone number, when they ask for your consent. At least remember the name of the background check company. As soon as you find out, you should contact the background check company and make sure that they won't report your dismissed convictions.
Lesson 3: Be aggressive
In our experience, most background check companies don't take it seriously until an attorney gets involved. So hire an attorney. Or call the free attorneys at A New Way of Life Reentry Project (323-563-3575)--even before you apply for a job.
Let's call him Bob. Bob has a long list of convictions, the last of which was more than 10 years ago. If he were applying for employment here in California, Civil Code § 1786.18 would've prevented background check companies from reporting any of those old convictions, but he had a great opportunity out of state. He called me right after he applied for the out-of-state job but before he had to submit to a background check, asking me whether he should or should not disclose his convictions since they had all been dismissed under 1203.4. After I explained the relative risks of each approach, he decided against disclosing them. He gave me the name of the background check company, and I contacted them the next day, asking for a copy of his report and explaining that whatever they find in California should be dismissed under 1203.4 and cannot be reported under FCRA as obsolete arrest records not leading to conviction, Last Friday, they issued a background check report to the employer. It was clean. Bob is moving to the other state in a few days.