What to Do If You Discover That an Employee or Candidate Has a Misdemeanor Conviction
Description: A recent pre-employment background screening pulled up a misdemeanor conviction on a candidate’s record. How should you react?
Picture this scenario: After weeks of sifting through resumes and conducting job interviews, you find a candidate who you think is a perfect fit for the job at hand. You extend an offer of employment, making it conditional upon the completion of a background check. You ensure your candidate that this step is “just a formality.” However, in this case, you do find a misdemeanor conviction on your candidate’s background check. What do you do?
Steering Clear of the One-Size-Fits-All Answer
In a perfect world, background checks really would be just a formality. You’d run them, confirm that your candidates have clean records, and move forward. However, at some point, you will encounter a candidate with a criminal record. When that happens, the most important thing to remember is that there is no one-size-fits-all approach to handling the situation.
In fact, steering clear of a one-size-fits-all mentality is the most important thing you can do if you encounter a candidate with a criminal conviction—especially if that conviction is a misdemeanor instead of a felony. According to EEOC guidance, use of criminal history for employment decisions can sometimes “violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964.” Avoid a situation in which you are enforcing a blanket “no criminal history” policy for all employees to help your business avoid discrimination.
How to Use Criminal History for Employment Consideration
Because of EEOC guidance, it is important to consider criminal records on a case-by-case basis when using them for employment purposes. While some types of criminal history might serve as grounds to disqualify a candidate from job consideration, other types might not justify the same treatment. To decide whether a person’s criminal history merits a reconsideration of their employment offer, the EEOC requires employers to consider the following factors:
- The “nature” and “gravity” of the crime
This factor essentially pushes employers to ask 1) what was the offense in question, 2) how serious is that offense, and 3) how relevant is that offense to the job at hand?
If you are dealing with a person who has a misdemeanor offense on his or her record, the gravity of the crime is frequently less severe than a felony. In general, misdemeanor crimes are less serious than felonies. Examples of misdemeanors may include petty theft, trespassing, vandalism, reckless driving, marijuana possession, and disorderly conduct. These crimes don’t often result in long-term incarceration but they may lead to fines, loss of licenses, community service, or probation.
Still, employers can consider the nature of any criminal offense to assess the risks of hiring someone. For instance, vandalism, while not usually a felony, still causes harm to the victim through loss or destruction of property. In general, thinking about offenses regarding harm caused is a good way to assess the gravity of the offense and determine whether disqualification from employment consideration is a reasonable response.
- The time that has passed since the offense
While considering the nature and gravity of an offense can tell you a lot, those factors become less relevant the older an offense gets. Say you are trying to create and enforce a drug-free workplace. A candidate who was convicted of marijuana possession six months ago poses a greater risk to that policy than a candidate whose drug possession conviction is six years old. Looking at the timeline of criminal history is important to assess risk and relevance.
- The nature of the job
You can’t fully assess the risk of hiring an individual with a criminal history if you don’t consider the specific position you are filling. If a misdemeanor has a clearly negative impact on a person’s ability to perform the functions of the job at hand, it is completely fair to dismiss that person from job consideration.
For instance, say you are filling a job that involves driving. A lone conviction for public intoxication from a few years ago may not have any relevance to the job. However, if the candidate you are thinking about hiring has a reckless driving misdemeanor, that offense is applicable—especially if the offense is recent or led to a license suspension. Putting a reckless driver on the road is a risk to your brand, to your company assets, and to other drivers.
Creating an Effective Policy for Misdemeanor Convictions
Considering the three factors discussed above is essential for any type of criminal history your applicants may have. It’s a good idea to think in advance about the types of misdemeanor offenses that may affect someone’s ability to perform the jobs you are trying to fill. Simply making a list of the core responsibilities of each job is a good first step. Once you’ve done that, you can begin to identify which misdemeanors might conflict with the duties of each job. You’ll be better equipped to decide which offenses are relevant before the next application crosses your desk.
If you are on the edge about whether to hire someone with a record, it may help you to consider a fourth factor: honesty. If your application still has a question about criminal history, it can serve as a useful character gauge. Someone who lies about criminal history on his or her application is a lot harder to trust than someone who is honest, forthright, and remorseful. For good reason, most employers aren’t interested in hiring candidates who lie during the application process. If a background check reveals that an applicant wasn’t honest on their application, that might be an even bigger red flag than the misdemeanor they were trying to hide.
Ultimately, it’s your call whether to hire a candidate with a misdemeanor conviction—or any criminal conviction, for that matter. Avoid blanket policies that bar candidates with any type of criminal history. Not only could this strategy result in problems with the EEOC, but it might also cost you great candidates.
Michael Klazema has been developing products for pre-employment screening and improving online customer experiences in the background screening industry since 2009. He is the lead author and editor for Backgroundchecks.com. He lives in Dallas, TX with his family and enjoys the rich culinary histories of various old and new world countries.