West Warwick, RI asked in Employment Law for Rhode Island

Q: Can I sue for defamation and/or unlawful termination of employment?

I was hired by a well-known insurance company in May. They paid to have me licensed throughout the US for Property and Casualty insurance. Part of the licensing process involved a uniform application that asked questions about previous convictions. The company has a department that specifically handled all new-hire licensing and as is procedure within this company -all questions regarding the application process were to be directed to this department.

I had a misdemeanor charge (for bouncing my own check), but this charge was expunged more than 10 years ago. The licensing department told me I did not have to disclose this.

Three months later I was fired for incorrectly answering this question and a letter was sent to every state that I was licensed in claiming that I had fraudulently answered the question, that I had this charge on my record, and no mention was made of the fact that it was, in fact, expunged.

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1 Lawyer Answer
Bernard P. Healy
Bernard P. Healy
  • Pawtucket, RI
  • Licensed in Rhode Island

A: Response: I do not think that you had a written contract of employment with the insurance company so you probably can not sue, under Rhode Island law, for unlawful termination. A defamation lawsuit is certainly possible. To prevail, the burden would be upon you to prove the insurance company libeled you when it sent correspondence to other states where you are licensed that you had fraudulently answered the question regarding criminal convictions. You state in your details that the charge was expunged more than ten years ago. Are you sure about that? Expungement of criminal records in Rhode Island is governed by Title 12, Chapter 1.3 Sections 1 through 4. If you have had your record expunged, you had to have filed a written Motion for its expungement in the Court where the conviction entered. Even if the case was filed upon a plea of nolo contendere, that filing is not the equivalent of an expungement and the conviction would remain on your record unless you actually filed a Motion to expunge.

If you did file a Motion to expunge, Section 12-1.3-4 of the Act provides that, with certain limited exceptions which do not apply, a person whose conviction of a crime who has been expunged may state that he or she has never been convicted of the crime. If your record was indeed expunged, after Motion, the letter that the insurance company sent saying that you had fraudulently answered the question would be libelous. As a practical matter, since you had consulted the licensing department of the company and the personnel in that department advised you that you did not have to disclose an expunged conviction, even if there was no proper expungement, the statement that you fraudulently answered the question might be considered libelous. But, if the conviction actually remains on your record, such an argument would be extraordinarily weak and the case probably would not be worth pursuit. You should also be aware that if a law enforcement agency wrongfully disclosed an expunged conviction, you are also entitled to sue the agency. The statue which I referenced provides for civil liability for anyone who wrongfully discloses the information.

I suspect that the conviction was not properly expunged. If it were, I can not imagine the insurance company learning of it three months later.

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