Hiring processes routinely involve background screening, creating anxiety for applicants with a history of legal issues. While felony convictions often lead to automatic exclusion, the impact of a misdemeanor record is less clear and frequently misunderstood. Many people wonder if employers are allowed to ask about lesser offenses, and if that information can be used to deny employment. This article clarifies the standard practices of employers, the legal restrictions placed on their inquiries, and strategic approaches for applicants navigating this complex part of the hiring journey. Understanding these rules helps minimize the risk that a past, non-felony offense will derail career prospects.
Understanding the Difference Between Misdemeanors and Felonies
The fundamental difference between a misdemeanor and a felony lies in the severity of the crime and the potential punishment associated with it. A misdemeanor is generally considered a less serious offense, typically punishable by fines, community service, probation, or incarceration in a local jail for no more than one year. Felonies, conversely, are serious crimes that carry the potential for sentences exceeding one year, usually served in a state or federal prison facility.
This legal classification establishes a baseline for employer assessment. Felonies often carry an inherent weight that makes them near-universally disqualifying for many positions due to perceived risk. Misdemeanors, however, are assessed on a case-by-case basis, with employers weighing the specific details of the offense against the requirements of the job. The presence of a misdemeanor does not automatically equate to an adverse hiring decision.
Standard Employer Policies on Background Checks
Most employers utilize third-party consumer reporting agencies to conduct background checks, which typically review a candidate’s history for the past seven years. The legal framework governing these reports in the employment context is primarily established by the Fair Credit Reporting Act (FCRA). Employers conduct these checks to mitigate various forms of organizational risk, particularly concerning the safety of employees and customers.
A company’s insurance liability exposure often dictates the screening thoroughness, especially for roles involving access to company assets or financial transactions. Regulatory requirements also necessitate stringent checks for certain industries, such as childcare, healthcare, or financial services. The presence of any criminal record triggers a review process to determine if the offense is relevant to the duties of the position.
The Legal Constraints on Asking About Criminal History
Federal Guidance on Using Criminal Records
Federal oversight, primarily driven by the Equal Employment Opportunity Commission (EEOC), restricts how employers use criminal records to make hiring decisions. The EEOC takes the position that blanket exclusions based on an applicant’s record may result in unlawful disparate impact discrimination. The guidance mandates that if a conviction history is used to screen applicants, the employer must demonstrate that the exclusion is job-related and consistent with business necessity.
Employers are advised to apply a “three factors” test when assessing a past offense. This test considers the nature and gravity of the offense, the time elapsed since the conviction, and the nature of the job held or sought. This framework requires an individualized assessment, meaning a misdemeanor conviction cannot automatically disqualify an applicant unless the employer can specifically link the offense to a performance risk in the role.
State and Local “Ban the Box” Initiatives
State and local “Ban the Box” initiatives restrict the timing of when an employer can inquire about criminal history. These laws mandate the removal of the conviction history question from the initial employment application form. The goal is to ensure an applicant is judged first on their qualifications and experience before their past record is disclosed.
These regulations do not prohibit background checks entirely; they simply delay the inquiry until later in the hiring process, often after a conditional offer of employment has been extended. The specifics of “Ban the Box” vary significantly across jurisdictions, ensuring a fair opportunity for all candidates to reach the interview stage.
How Specific Misdemeanor Types Affect Job Eligibility
An employer’s decision to utilize a misdemeanor conviction must be directly linked to the responsibilities of the position. This concept of “job relatedness” forces the company to establish a demonstrable correlation between the offense and the specific risks posed by the applicant in that role. For instance, a misdemeanor conviction for driving under the influence (DUI) would be highly relevant and likely disqualifying for a job requiring extensive driving, such as a delivery driver.
Similarly, a misdemeanor involving theft could reasonably exclude a candidate applying for a position with fiduciary responsibilities, like a bank teller handling cash. Conversely, the same theft conviction would likely hold little relevance for an entry-level position in data entry. Misdemeanor assault or domestic violence convictions often become pertinent when the job involves working unsupervised with vulnerable populations. The more closely aligned the past offense is to the daily duties of the job, the stronger the employer’s defense for making an adverse hiring decision.
Strategies for Disclosing a Misdemeanor During the Hiring Process
Applicants with a known misdemeanor record should proactively obtain a copy of their own background check results to understand exactly what information an employer will see. The decision of when to disclose often depends on local “Ban the Box” laws; generally, it is best to wait until the employer asks, which usually occurs after the initial application phase. If the topic arises, candidates should prepare a concise, professional explanation that takes responsibility for the past event without making excuses.
The explanation should focus on the time elapsed since the offense and concrete evidence of rehabilitation and personal growth. Framing the event as an isolated incident helps shift the focus from the past mistake to the applicant’s current reliability and maturity. Preparing a brief narrative allows the candidate to control the discussion and demonstrate transparency, rather than having the employer discover the information cold on a report.
Applicant Rights and Recourse If Employment is Denied
If an employer denies employment based wholly or partly on information found in a background check, the applicant is afforded specific rights under the Fair Credit Reporting Act (FCRA). The employer must first provide a pre-adverse action notice, which includes a copy of the background report and a summary of the applicant’s FCRA rights. This preliminary step allows the applicant a chance to review the report and dispute any inaccurate information before a final decision is made.
Following the waiting period, if the employer proceeds with the denial, they must issue a post-adverse action notice confirming the decision was made using the report. Applicants can contact the consumer reporting agency to correct any errors found on the report, which could lead to a reversal of the hiring decision. If the applicant believes the employer used the misdemeanor in a way that violates the EEOC’s non-discrimination guidelines, they may file a complaint with the EEOC or a relevant state agency for investigation.