New Hampshire employers are permitted in an application for employment to ask a job candidate if he has been arrested or convicted of a crime that has not been annulled by a court. An annulment of a criminal conviction is a procedure upon which the court makes a ruling that the criminal record of the person for that crime is now as if they had never been arrested, convicted, or sentenced. However, if he commit a crime after the order of annulment the prior conviction can be considered by the court in determining a sentence to be imposed for the new crime and it can be counted towards an habitual defender status under the criminal law in accordance with New Hampshire statute RSA 651:5(X)(f)
Simply put, if a New Hampshire employer want to ask in a job interview or on an employment application whether or not a job candidate has ever been convicted of a crime, it should add the words in the application “that has not been annulled.” Asking whether a person has been arrested of a crime could put the employer at risk of being targeted by the Equal Employment Opportunity Commission (“EEOC”) in that questions about arrests could have disparate impact on minorities in that historically certain minorities are arrested more often than whites. The EEOC has provided specific statistics of such a disparate impact in a 2012 published enforcement guideline. That said, if the employer learns of facts, including an arrest, that gives the employer concern as to whether the employee or candidate is suited for the job, further inquiry can be made. For example if the employer learned that a 22 year old Hispanic male that was just hired for a supervisor of a the manufacturing floor had been accused of selling illegal drugs off the loading dock of his former employer, the employer should contact its employment attorney and investigate further. A firing may be appropriate even if the employer was not arrested and therefore also not convicted of selling drugs. If the job candidate honestly answers that he was convicted of a crime and gives the details of the criminal conviction, the employer should look at the timing of when the conviction happened in relation to the job being applied for and the criminal offense to see if the crime is a legitimate consideration for the job. For example, an aggravated driving while intoxicated that occurred 5 years ago may not be a bar of employment for an assembler on a manufacturing floor position, but could for a school bus driver.
If the job candidate is hired after lying to the question of whether he had ever been convicted of a crime that had not been annulled and the lie is discovered while he is still employed he can be fired for his dishonesty. However if the lie was not discovered during his employment, he was fired for performance issues, claims he was fired due to employment discrimination, and the employer then finds out that he lied on his employment application about his criminal record, the employer cannot use as a defense that he would have never hired the employee if he had honestly answered the criminal conviction question. This is known as the after-acquired evidence doctrine in which the United States Supreme Court has held that once the employer learns of the lie on the job application, the exposure of the employer to future loss wage claims by the employee stops since if the employee was still employed at that time he could had been legitimately fired for lying on the job application.
To the extent the criminal conviction involves issues of dishonesty, depending on when the crime happened and the nature of the crime, there is a possibility that when the former employee takes the witness stand in his employment discrimination case the judge may, or may not, permit the employer’s attorney to challenge his credibility because of his past criminal conduct for which he was convicted. However if he is asked in pretrial discovery under oath whether he was ever convicted of a crime and lies then, that itself is a crime and the judge may be more likely to let that evidence be revealed to attack his credibility when he takes the witness stand at trial since the crime involving dishonesty was in the very case being litigated and probably occurred only months before trial.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].