Misdemeanor vs Felony
6341995
13 Posts
For the most part, we would never hire someone with a Felony conviction. However, would you ever not hire someone with a misdemeanor conviction? We have a candidate who had a misdemeanor assualt charge and we are very reluctant to put someone to work with a violent crime record. Thoughts?
Comments
Go with your gut...
I would be hesitant to hire someone with ANY conviction, but especially a violent crime conviction. I spent a summer as a clerk in the county DAs office during college, and while that certainly does not make me an expert, I did notice that prosecutors often offer deals to get a plea and not go to trial becuse the courts are so busy. What may have originally been a felony indictment could then be a plea and conviction of a misdemeanor. I would be especially wary of an assault conviction since you could encounter potential workplace violence issues.
Quite often, if it is indeed a smaller misdemeanor offense, or the person does not fit the profile of a multiple offender, the judge will request that record be expunged after a certain period of time (usually 12-36 months) if there are no incidences or complaints against the individual during that time. If it is showing up on the background check, then there that is good reason not to hire that candidate.
the equal employment opportunity commission has some advice:
"Using arrest or conviction records as an absolute bar to employment
disproportionately excludes certain racial groups. Therefore, such records
should not be used in this manner unless there is a business need for their use.
Whether there is a business need to exclude persons with conviction records
from particular jobs depends on the nature of the job, the nature and
seriousness of the offense, and the length of time since the conviction and/or
incarceration.
Unlike a conviction, an arrest is not reliable evidence that an applicant has
committed a crime. Thus, an exclusion based on an arrest record is only
justified if it appears not only that the conduct is job-related and relatively
recent but also that the applicant or employee actually engaged in the conduct
for which (s)he was arrested."
What is the job/description? Does this position work with the public?
I think you need to look at the actual job duties and interaction with others before automatically writing this candidate off.
Plus like the other poster said, misdemeanor assault can run from getting in a fight at the nail salon to having pled down a larger crime from a felony. So I wouldn't automatically assume this is a violent criminal. Just searching Google for "misdemeanor assault" gives a whole range of possibilities.
I would search your state to see what the definition of misdemeanor assault is. Here is one definition that I found: "An assault is an apparent attempt to inflict a bodily contact or injury on another person. An assault differs from a battery because there is no touching of the victim in an assault; a battery necessarily includes touching. For an assault to occur, the person charged with assault must have intended to make bodily contact or inflict injury on the person assaulted and must have had the apparent ability to do it. The attempt must be open and obvious in such a way that the person assaulted fears that he or she will be physically injured. If the assault includes the use of a dangerous weapon, or if an attempt is made to cause death or serious injury, the crime is called aggravated assault. If the injury is minor or is done without a weapon, the crime may be classified as a simple assault. There are also special categories of assault, like domestic assault and sexual assault, that tend to be vigorously prosecuted...."
Some great words of wisdom here. Although you spoke only about convictions, there are real EEO problems with using arrest records. When we do background checks, we don't ask for arrest records and, if we received them, we wouldn't even look at them. Essentially, arrest racial breakdowns are seriously out of whack with population racial breakdowns, and so arrest records are inherently biased against certain groups and do not, in and of themselves, show any wrongdoing on the part of the arrested individual.
Background searches are like personality tests: never position your Company such that it uses one or the other as the sole determinant of hirability or non-hirability. EEO expects that you will take a variety of things into account on a background check such as job relatedness of the crime, how long ago the conviction occurred, and how serious the crime was. For instance, not hiring someone with forgery of a financial instrument into your accounting department is about as clean an example as you might find. Not hiring someone with a single misdemeanor assault conviction 10 years ago as a day shift janitor is much less clear cut. Because jail populations also do not reflect national populations in terms of demographics, simply saying you don't hire individuals with convictions runs into the same kinds of problems that arrests run into but the primary difference is that at th point of conviction, we accept (in most cases you can never really "know") that the person has done wrong.
While background searches are like personality tests in the above way, they are nothing like medical conditions. Generally, you can't ask someone about their medical conditions in an interview or pre-hire screening discussion but you can ask them about their convictions. "Jane, I notice here that you were convicted of simple assault 2 years ago. Was simple assault the original charge?" However, a lot depends on state. I'm in Texas and we have wide lattitude here. Some states I know are very particular about these things both in terms of what you can ask about and what you can use in a hiring decision.