We see over a 1 in 5 criminal case “hit” rate. Many cases we list on our background check reports are minor misdemeanor offenses. But just how important are they in the hiring decision? Should the candidate be disqualified because of certain types of misdemeanor convictions… OR should the candidate simply be given a BREAK.
This comic strip “I Was Framed – “Petty Theft and Other Misdemeanors” highlights the issue of these types of case listings on background check reports. Misdemeanors may be an indictor of an Employee Trouble Storm Ahead or just an temporary lapse in judgment.
Please note this Disclaimer: We are not lawyers and any information in this blog post is not meant as legal advice. This article is not meant to act as or take the place of a professional legal consultation.
According to Black’s Law Dictionary a Misdemeanor is: “In criminal law. A general name for criminal offenses of every sort, punishable by indictment or special proceedings, which do not in law amount to the grade of felony…” http://thelawdictionary.org/misdemeanor/
Typically a misdemeanor charge would be punishable by one year in jail or less. Each State is different. If you have questions about a particular charge or offense listed on a background check report, you should look up the State Criminal Penal Code (based on the source court) for clarification.
In Texas Misdemeanors are grouped into classes A, B or C. Class A Misdemeanor is also considered a “Gross Misdemeanor” and “C” is the most minor of the misdemeanor classes.
Class A Misdemeanor – Fine Max Up to $4,000 – Up to 1 Year Jail
Class B Misdemeanor – Fine Max Up to $2,000 – Up to 180 Days Jail
Class C Misdemeanor – Fine Up to $500 – No Jail
The 15 Most Common Misdemeanor A or B charges we see on background check reports:
- Driving Under the Influence (DUI),
- Driving While License Suspended (DWLS)
- Disorderly Conduct
- Petty Theft
- Assault Bodily Injury
- Assault – Domestic Violence
- Affray [Fighting]
- Trespass or Criminal Trespass
- Disorderly Conduct
- Terroristic Threat
- Unlawful Carry of Weapon (UCW)
- Indecent Exposure (sometimes includes Public Urination)
- Bad Check
10 Things to Consider Before Making a Final Hiring Decision based on a Report Showing a Misdemeanor Case:
- Pay attention to the disposition of the case (meaning conviction versus deferred adjudication and other types of non-convictions)
- Ensure you understand EEOC guidance on the use of criminal background reports in making a hiring decision
- Make sure you look up the employment law of the State of Current Address/Legal Residence of the Job Candidate
- If you are hiring for a contract, understand your “disqualifying criteria.”
- Be consistent in your hiring decisions for others hired into the same position/roles
- If you see cases listed for a person with a relatively common name, make sure you question your background check company about the “Matched” identifiers and consider the possibility the listed information may be in error or not truly matched to your job candidate.
- Some sources have very limited identifiers and may taint an innocent job candidate unnecessarily such as Sex Offender Registry lists and U.S. Federal District court cases.
- Double check your background check company reporting compliance and question any possible errors you find. For instance if you receive a criminal case with a conviction more than 7 years ago on a California resident, let your background check company know. Some background check vendors may make an error depending on their internal quality controls or their researcher network. It is likely better to question possible errors than to blindly assume your Vendor is error-free.
- Instead of assuming you understand a charge based on the face value meaning, take the time to look up the source State Penal Code. You may be surprised at how an offense appears “scarier” than it really may be. As an example, you may want to look up the true legal definition of “Terroristic Threat.”
- You should provide a pre-adverse action letter if you decide to not hire based on the background check report. And Don’t forget Adverse action letters and send before the time limit.
Would you hire a person with a Misdemeanor criminal conviction case if the charge shows “Terroristic Threat”? And Why?
When misdemeanors are listed on a job candidate background check report there are many things you should consider before making a final hiring decision.
Read through our 10 Things to Consider… above. Assume your background check reports with cases may contain an error and stay neutral. Errors can occur with background check reports for many reasons even with the best background check companies.
OTHER COMIC STRIPS: