The Lowdown on Minor Criminal Infractions and Background Checks

A common question employers ask about background screening is: “Will minor criminal infractions be found in the results of a background check, and if found, how should they impact our hiring decision?”

It’s a good two-part question.

The short answer to the first part of the question is minor criminal infractions generally will show up when screening companies conduct a county criminal record search, but this isn’t a hard and fast rule. To show you how this all can work, I’ll use minor marijuana possession convictions as an example. Then I’ll address the second part of the question, how minor criminal infractions should—or shouldn’t—impact the hiring decision.

Where Are These Records Found?

The best method to identify convictions for marijuana possession is no different than that which you would use to find any criminal record; simply search the county court(s) where a person has lived, worked or attended school.

Why Wouldn’t a Possession Conviction Show Up? 

There are a few reasons why a marijuana possession might not show up. If the record is treated as a minor infraction and is dealt with administratively by a local court, chances are, that record will not appear on a typical Felony/Misdemeanor criminal background check.

Beyond that, many courts around the country allow low-level convictions such as marijuana possession to be sealed or expunged if the person meets certain conditions. If this happens properly, the record is effectively erased from the court’s searchable public records and cannot be found.

There are also some areas where low-level marijuana offenses cannot, by law, be reported. If you are conducting background checks in California, for instance, you cannot use these types of records to deny employment if the person was entered into a post-trial diversion program.

Don’t Forget About Door #3

There is another possibility employers should consider if a minor possession charge is revealed on a National Criminal Database search. Remember, that such databases are fraught with holes and often incomplete. Regardless of the record found on a national search, it should always be verified in the jurisdiction where the record originated. This is especially true with minor convictions where there is a possibility that the record was expunged or sealed. If the national database isn’t regularly updated, there is a good chance that that the conviction wouldn’t have been removed from the database’s records.

How Should Minor Criminal Convictions Impact Hiring Decisions?

Unfortunately, there’s never a good answer to this, the second part of the question employers so often ask about minor criminal convictions.

Employers want to ensure that the people they hire fit your company culture and don’t pose any threat to their business or other employees. But it’s also true that every employer is different and, for that matter, every job comes with a unique set of responsibilities.

Ultimately, it’s an answer each employer has to determine for itself.

There are, however, some considerations that employers should take into account before making a hiring determination. In particular, employers should consider how long ago the offense occurred, whether the candidate is a repeat offender and how the offense relates to the job being sought. You also need to consider if there are any industry regulations that might apply. For instance, if the person is applying to be a pilot, a marijuana conviction could preclude an airline from hiring them. Whereas the same conviction might be immaterial for someone applying to be an accountant.

As always, employers should always remember to follow proper adverse action procedures if they ultimately decide not to hire the person due to outcome of the background check.

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