Alexander Pope once said that to err is human, and statistics usually prove him right. Everyone has had an “oops!” moment in which they did something, then wished immediately that they hadn’t. Studies suggest that by the age of 23, approximately one-third of all Americans have been arrested for a crime.
Getting a job with a misdemeanor can be a tricky process, but it doesn’t have to be an insurmountable obstacle. A misdemeanor is much less serious than a felony, although it’s more serious than an infraction.
Misdemeanor Crimes and Their Classes
There are misdemeanors… and then there are misdemeanors. Most states classify these crimes into categories of severity, either by “classes,” “levels” or some other identifying term.
Class A and Level One misdemeanors are typically the most grievous. For example, criminal trespass is a Class A misdemeanor in Illinois, whereas theft of property valued at less than $100 is a less serious Class C misdemeanor in Texas. It can vary by crime and by state.
Some offenses are tagged as “wobblers.” As the name suggests, they can go either way. They’re serious misdemeanors that can technically be charged as felonies except, perhaps, for some extenuating circumstances. The ultimate decision often rests with the court.
Read More: What Is a Class A Misdemeanor?
Typical Misdemeanor Penalties and Sentences
Misdemeanors are typically punishable by no more than a year in jail, and “jail” is the operative word here. It’s not the same as prison, which involves state or federal incarceration. Jails are usually county facilities.
Fines are also common, either in addition to or in lieu of jail time. They can range up to $5,000 in some states, depending upon the severity and class or level of the misdemeanor. Class A misdemeanors usually result in jail time, whereas a Class D misdemeanor might be punishable by just a fine.
Would a Misdemeanor Affect Employment?
Moving on job-wise after a misdemeanor conviction can depend on:
- The amount of time that’s passed since the crime was committed,
- Whether the conditions of sentencing have been met,
- The exact nature of the crime, its class or level, and the job being applied for,
- Whether the individual’s record includes just one or multiple misdemeanors, and
- How he or she addresses it with potential employers.
Many job applications ask about any criminal history, and some fields of employment can be counted on to do so, such as education, finance and law enforcement. But some companies ask only about felonies, and some set a time limit, such as convictions that have occurred within the last seven or 10 years. An applicant’s response should accommodate the exact wording of the application’s request for information.
How the employer responds can depend on the company or hiring personnel. It’s possible that a “yes” answer might be overlooked, depending on the circumstances, while other companies have specific policies against hiring anyone with any type of criminal record. Some might require that a letter of explanation accompany the job application.
Even Misdemeanors Appear on Background Checks
Applicants aren’t necessarily in the clear if a job application doesn’t specifically ask about a criminal record, either with or without a delineating a time span or making a distinction between misdemeanors and felonies. Many companies routinely run background checks on all prospective employees. In fact, Monster.com reports that 93 percent of employers do, so no-background-check jobs are somewhat rare.
Misdemeanors remain on someone’s record forever, and even pending charges – those for which an individual hasn’t yet been officially convicted – can show up on background checks. But older convictions might not be apparent because employers can elect to receive information for only the last seven years, or perhaps 10 years. A crime committed two decades ago might not be revealed in this case.
Background Checks Can Be Wrong
Errors in background checks aren’t uncommon_. John_ Doe’s misdemeanor can and sometimes will end up on Jon Doe’s background check, or the exact nature of the misdemeanor can be misreported. A single crime might be reported several times, or a misdemeanor might be erroneously classified as a felony.
Applicants have a right to ask a prospective employer for a copy of the report, but forewarned is forearmed. All job applicants should know in advance what’s going to turn up, even if they’ve never been convicted of a crime. They can run background checks on themselves for a fee.
Errors can be addressed with the reporting agency, and complaints can be made to the Federal Trade Commission if the agency fails to correct misinformation after an investigation or after being provided with proof.
Protections Provided by Federal and State Law
Federal and state laws control employers’ rights to some extent. For example, federal law doesn’t limit how far back prospective employers can look on a background check, but the Fair Credit Reporting Act (FCRA) does limit them to actually consider only the crimes that occurred in the last seven years. They might know about others, but they’re not supposed to let the information affect hiring decisions.
The FCRA also requires that employers obtain the job candidate’s written consent to do a background check and notify them if they’ve been denied employment due to the check’s contents.
Some states limit how far back an employer can check. As of 2018, 12 states confined the period to seven years. The FRCA allows pending pre-conviction charges to be considered, but seven states do not.
Some Jobs Are More Forgiving
Some misdemeanors are more likely to trigger a negative reaction than others, such as those associated with theft, drugs or violence. And there’s often a correlation between the nature of the crime and the position that’s being sought. Someone convicted of a crime against a minor would most likely not be able to land a job in the childcare industry, and someone convicted of theft probably would not be employable by a bank.
But that still leaves other fields. Employers in computer technology, food service, energy, automotive technology, skilled trades and the arts tend to be among the most forgiving of applicants with criminal pasts. Small companies also have a reputation for being more flexible than larger ones.
Honesty Is Usually the Best Policy
There can be some advantage in coming clean right at the start, explaining what happened and how the individual has rehabilitated since the conviction, either on the application, if space is available, or in the first interview. Applicants are advised to own up, however, to avoid having to make a “It wasn’t my fault!” defense.
In fact, the Equal Opportunity Employment Commission compels prospective employers to give applicants a chance to state their case. Hiding the information only to have it turn up on a background check can be much more detrimental.
The Possibility of Expungement
Expungement can be another option for job seekers who find that their misdemeanor records are limiting their prospects, but the rules for this process can vary from state to state. It usually requires the assistance of an attorney. Some states offer “automatic” expungements for first-time offenders after the completion of a rehabilitative program.
Expungement removes the conviction from an applicant’s criminal record, so it’s no longer an issue. Again, however, job seekers should follow up with background check agencies to make sure it’s actually removed from their reports.
- NOLO: Class A and Level 1 Misdemeanors
- LegalMatch: Classes of Misdemeanors
- Onin Staffing: Do Jobs Check for Misdemeanors?
- Monster: What to Know About Job Hunting When You Have a Criminal Past
- Neal Davis Law Firm: How Can a Misdemeanor Charge Affect Employment?
- Career Trend: How to Get a Job With a Misdemeanor
- Brennan Center for Justice: Just Facts – As Many Americans Have Criminal Records as College Diplomas
- NOLO: Texas Misdemeanor Crimes by Class and Sentences
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.