As a hiring manager, it is crucial to prioritize the selection of a qualified candidate who aligns with the company’s values and upholds its integrity.
Even the smallest criminal offenses can be a red flag. For example, a history of Driving Under the Influence (DUI, DWI, OVI, etc…) can be a sign of things to come and show that a candidate may not be the most responsible person.
Candidates who check all the job-related boxes could still fall short if they have a history of criminal convictions.
In this article, you’ll learn about whether misdemeanors appear on background checks and if they can be expunged from them.
What Is a Misdemeanor?
A misdemeanor is a lesser crime often punishable by incarceration, a fine, or a combination of both. In many cases, misdemeanors are punishable by a year or less, and misdemeanor incarceration is typically served in jail instead of prison. Of course, the specifics can vary.
Common misdemeanor offenses include:
Reckless or drunk driving
Trespassing
Shoplifting
Driving without insurance or a suspended license
Simple assault
Drunk and disorderly conduct
Possession of specific controlled substances
And some crimes which can be charged either as a felony or misdemeanor depending on the circumstances and the discretion of the district attorney
The Difference Between Criminal Offenses: Infractions, Misdemeanors, and Felonies
There are three primary categories of punishable offenses – infractions, misdemeanors, and felonies.
Here are the differences between the three:
Infractions are criminal violations that result in minimal jail time of under five days or fines. Generally, they won’t appear on background checks. Some examples are petty offenses like disturbing public peace, littering, or traffic tickets.
Misdemeanors are offenses resulting in penalties such as fines, house arrest, or incarceration for less than one year. These offenses are categorized into three levels—Classes C through A—with Class A offenses carrying the most severe sentences. Common examples of misdemeanors include simple assault, reckless driving, and shoplifting.
On the other hand, felonies represent the most serious category of crimes, warranting punishments ranging from more than one year of imprisonment to life behind bars. Examples of felonies encompass serious offenses such as armed robbery, child endangerment, arson, and murder.
Misdemeanors and felonies stay on the criminal record and appear on background checks.
Do Misdemeanors Show on a Background Check?
Yes, criminal records, including misdemeanors and felonies, appear on background checks. That said, it does depend on the type of background check and laws governed in each state.
Almost all pre-employment background checks involve checking an applicant’s criminal history to confirm their education, work history, and any professional licenses.
On top of that, these checks may verify other aspects, such as a candidate’s drug test and driving records. However, there are restrictions on what these checks can disclose.
Due to the Fair Credit Reporting Act, certain information may not be reported beyond 7 years or 10 years for bankruptcy, except for convictions. Some information that otherwise could not be reported can be reported if the candidate’s annual salary will equal (or could be reasonably expected to equal) $75,000 or more, which is known as Executive Exception.
What Factors Influence the Listing of Misdemeanors on a Background Check?
There are factors that can affect how misdemeanors appear on background checks. Sometimes, states have laws that can restrict access, which is something that businesses should be aware of and account for.
Amount of Time Passed
Some states let criminal records stay on record and appear on background checks forever, while others limit it to the last five, seven, or ten years. They might also have specific rules about when and how misdemeanors can be disclosed. For example, in Hawaii, they won’t reveal details of the felonies after seven years and misdemeanors after five.
How Misdemeanors Are Defined
When it comes to misdemeanors, the definition may vary depending on location. What’s a misdemeanor in one state might be considered less serious in another.
The Type of Background Search
Misdemeanor records are often kept in county courts. If a business does a state or national background check, they might miss misdemeanors if the local court doesn’t keep digital records or report to the bigger databases.
Also, different types of background checks may reveal different information. Some checks focus only on criminal convictions, while others include additional details such as arrests, pending charges, or dismissed cases.
Pending Charges
If someone with a misdemeanor charge still awaits a decision, it might pop up in a background check. This does vary: some states won’t mention pending charges, while others might talk about them only if they’re felonies.
How Long Does a Misdemeanor Stay On Your Record?
Generally, a misdemeanor stays on your record for life. However, some states allow individuals to have their criminal records sealed or expunged after a certain amount of time.
Sealing of criminal records restricts public access to that information. While the record still exists, it’s not accessible to the general public.
For example, in Nevada, you can seal most misdemeanors one year after the case closes. Or if the case is dismissed, there’s no waiting period to have the misdemeanor charge sealed in the criminal record.
That means, as an employer, you won’t be able to see their misdemeanor offenses when sealed.
Also, some jurisdictions limit how far back background checks can go. Misdemeanors might not show up on background checks after a certain number of years, depending on the state’s laws.
State Regulations on Disclosure of Convictions
Certain states have rules regarding the disclosure of convictions. For example, a number of states prohibit certain records from being disclosed if over seven years have gone by since the conviction. However, exceptions may be in place, such as if the position’s salary exceeds a specific amount.
Laws vary by state. It’s important to check what rules apply in the state in question and follow these and any other relevant laws.
Can You Have a Misdemeanor Expunged From Your Record?
Expungement is a legal process where you can clear the criminal conviction from your record. Once the record has been expunged, that crime will be completely removed from the public record.
Some states allow this, but the person must meet specific criteria and procedures.
Whether a criminal offense can be expunged depends on a few factors, including the location, nature of the crime, and the case outcome.
Location: The rules for erasing a crime depend on where it happened. Some places, like New York, don’t erase adult crimes but might hide them. It varies—some states allow clearing certain charges, like DUI, while others don’t.
Type of Offense: Serious crimes, especially violent ones, are usually a no-go for expungement. Also, a history of repeat offenses may remove a person from eligibility for expungement.
The Case Outcome: Whether you can expunge a crime often depends on whether you were convicted or arrested. You might have a better chance if you got arrested but didn’t have a conviction.
Final Thoughts
Every business needs to conduct criminal background checks to assess the potential risk of an employee.
Knowing potential misdemeanors, no matter how small they are, can help you evaluate whether a candidate has a history of behavior that could be detrimental to the workplace.
If you want to run background checks, look no further than ScoutLogic.
At ScoutLogic, we provide comprehensive and highly accurate criminal background check services to help you make smarter hiring decisions. We return fast checks and pull from various sources, including national, country, federal, and state levels. Get in touch today and have peace of mind knowing you made the right hire.
David Garcia, co-founder and CEO of Scout Logic, is an industry leader in the bulk background check world. With his strategic acumen and expertise in the HR sphere, specifically in hiring, recruiting, legal compliance, background checks, and resume screening, he’s an invaluable asset and consultant.
David's counsel extends across the boards of ScoutLogic, YipitData, and Supplier.io, drawing from his impactful stints on the boards of Infutor and Avetta. With an extensive 25-year journey, he champions unparalleled B2B commercial leadership within data & analytics, significantly shaping the HR landscape.
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