Debunking Myths: The Real Impact of Misdemeanors and Criminal Records on Employment Opportunities

A criminal record can be life-altering, even if the arrest and resulting conviction only concern a minor crime. For many years and even today, a record can be a barrier to employment, to housing, and to many other opportunities. Naturally, therefore, many people have serious concerns about what an employer will consider during the hiring process. As a result, there are many misconceptions about misdemeanors and criminal records—misconceptions that persist even in otherwise savvy HR departments.

Now is the time to debunk some of the myths associated with misdemeanors. Exploring the facts today can both help employers position background check results within the appropriate context and encourage individuals with a record to apply for better jobs. Let's begin with one of the most common questions.

Will Employers Automatically Deny Applicants With Misdemeanors?

The answer to this question should be "no." While some companies may choose to silently implement such a policy, it is not legal to categorically deny applicants solely because they have a criminal record of any kind. The courts and federal regulatory agencies have repeatedly determined that such conduct is discriminatory and a violation of the Civil Rights Act. However, many applicants continue to believe that they may be "unemployable" because of their past record.

That's a myth. Even in states that do not "ban the box" on job applications that ask about criminal histories, employers that do ask typically only inquire about felony convictions. Misdemeanors, as lesser crimes that typically carry less than a year in jail or only a fine, aren't held on the same level as felonies by most employers. Therefore, applicants with misdemeanors should feel more encouraged to apply for jobs, especially positions that don't have any potential connections to the past crime. 

Not All Misdemeanors Are the Same

The idea that employers will or should evaluate all misdemeanors the same way is another myth. In most states, misdemeanors break down into multiple categories based on the type and severity of the crime. At the highest level, sometimes called a "Class A" misdemeanor by states, there can even be the potential to charge the crime as a felony instead of a misdemeanor. Employers may more heavily weigh the facts and relevance of high-level misdemeanors.

However, that is not necessarily going to be true for the lowest level of misdemeanor crimes, called "Class C" in states with the ABC classification system. The lowest misdemeanor might be something for as simple as petty theft or vandalism, with punishments that might not exceed more than 30 days in jail. Because of this variation in severity, employers should look carefully at the type of crime to make a well-reasoned decision. 

Common Misdemeanors May Have Little Bearing on Many Positions 

In states that impose restrictions on how employers evaluate criminal records, some stipulate that you should examine the relationship between the job sought and the crime in question. In fact, this is one of the factors that the EEOC suggests using when evaluating candidates. In this context, it could be clear that many individuals with misdemeanors do not necessarily pose a high level of risk to the business.

Common misdemeanors often include simple, low-value thefts, trespassing, public intoxication, vandalism, and in some states, an individual's first or second DUI charge. DUIs and background checks can be tough to reconcile since employers may see such charges as reflective of a lack of good judgment. However, again, the job role should play a part in this consideration. Should an old DUI charge matter if someone applies to work as a fry cook?

Far from being a concrete barrier to any kind of job, basic misdemeanor crimes placed in the context of time, severity, and their relevance may not dissuade companies from hiring someone. 

Fair Chance Laws May Lessen the Impact of a Misdemeanor Record

In many jurisdictions today, employers face "fair chance" and ban the box regulations that limit how and when you may ask criminal history questions. In such locales, an applicant may receive a conditional job offer before an employer even sees the individual's criminal record. The thinking behind such laws is clear. If an employer determines someone is suitable ahead of time, it may lessen the negative impact of seeing a criminal record.

For businesses, such a process provides important context. Following along with fair chance legislation can mean fielding highly-qualified and reliable applicants you might otherwise overlook. For applicants, it's further proof that opportunities still exist even after a conviction.

Expungement Opportunities Continue to Expand

It is possible for employers to never even know that an individual once had a misdemeanor criminal record if they take advantage of expungement opportunities. Numerous states provide a pathway for individuals with minor convictions to petition to have their records put under seal or expunged entirely. In both cases, for virtually all job positions, an applicant can truthfully say "no" if asked whether they have a criminal record.

Background checks won't report expunged or sealed charges, and employers aren't allowed to consider them even if you learn about the charge some other way. Some states no longer even require a petition process; instead, expungement is automatic after a certain period elapses. In these locales, the long-term impact of a misdemeanor on employment prospects is even smaller.

Some States Limit the Lookback Period on Misdemeanors

Will a background check only show seven years of conviction history? It's a complex question because the answer varies among states, and generally, felonies fall outside of lookback period laws. However, states such as California do limit background checks in this way, only allowing the reporting of convictions for seven years from the conclusion of a sentence. Other states with limited lookback periods include New York, Colorado, Massachusetts, and Maryland, to name a few.

In such states, it is possible that employers may not be able to consider misdemeanors and background checks that are very old. In either case, the EEOC suggests considering how much time has passed since an individual's last conviction. The thinking is simple: if a candidate's last encounter with the justice system was a misdemeanor from 10 or 15 years ago, the risk they pose today is likely to be lower than someone with a very recent conviction.

What About Traffic Tickets and Background Checks?

It's a common misconception that traffic tickets will appear on a criminal background check. The only exceptions involve situations where a traffic incident escalates from a civil infraction to a misdemeanor or felony, such as is the case with DUIs. Otherwise, civil charges such as speeding or failure to yield are only a part of your driving record, not your criminal record. In jobs regulated by the Department of Transportation, though, an individual's motor vehicle record report will likely contain information about traffic violations.

Considering the Impact of a Pending Misdemeanor Charge

A pending charge on a background report can prove more troubling for employers. While it is not a conviction, "pending" does indicate that the individual has active misdemeanor charges against them. In such cases, employers should again carefully weigh the facts and even consider a discussion with the applicant where appropriate. Since someone could potentially face jail time if convicted, a pending charge may be more of a barrier to employment than a recent conviction with a completed sentence.

Developing a Hiring Policy That Evaluates Severity Fairly

The presence of a criminal record on a background check can be a concern, but it should not necessarily be a permanent barrier to employment. That's especially true when the crime in question is potentially a low-level misdemeanor—perhaps even a victimless crime. For individuals, it is important to know that there are many elements working in their favor that should lead to a fair assessment.

For employers, understanding how to evaluate and assess misdemeanors and criminal records is more important than ever. At a time of increasing legislation and regulatory enforcement actions, it is vital to develop a policy that fairly assesses everyone on their merits. Even outside ban the box jurisdictions, using the EEOC Green factors to assess candidate records can increase the quality and diversity of your hires. Take a closer look at how you hire today.