A misdemeanor is a crime that’s punishable by jail time and/or fine. It’s a less serious offense than a felony but a more serious one than an infraction, which typically doesn’t involve any jail time.
In this article, we’re going to discuss how a misdemeanor record can affect your chances of employment in Canada and in the US. We also cite important laws in both countries that protect your rights as well as the employers’ rights. Read on!
How does Misdemeanor Affect Employment?
Although misdemeanors are less serious offenses than felony charges, employers can consider them as a factor in your job application.
Different laws treat misdemeanors differently. However, many laws limit how employers can use such records to make hiring decisions. For instance, you’re not required to disclose any arrests that didn’t lead to convictions. You’re also not required to talk about any records that have been expunged from your record.
Still, it’s wise advice to reveal such records on your own instead of waiting for them to come up in a background check. If you’re asked, answer as truthfully as possible. Many employers do not automatically deny an applicant solely because of a misdemeanor.
Misdemeanors in the US
There are no federal laws explicitly preventing employment discrimination based on a criminal record. Employers have the right to consider such history as part of the hiring decision. Even so, many states have enacted laws that prevent arbitrary bans on such discrimination.
Title VII Protections from Employment Discrimination
The Title VII of the Civil Rights Act of 1964 prohibits practices that disproportionately screen out applicants due to ethnicity, race, or other protected class.
Arrest rates are higher for some groups, so employers with policies against applicants with criminal records could be guilty of racial discrimination.
The Equal Employment Opportunity Commission (EEOC), meanwhile, allows employers to screen out applicants who could pose safety risks — as long as the process doesn’t involve racial discrimination.
Fair Credit Reporting Act (FCRA)
The FCRA protects you by ensuring the accuracy of background checks conducted on you. These checks can be erroneous, such as when your expunged records still show up.
Worse, the checks may show other persons’ records because you have the same names. If you have a record, the crime may also be misclassified.
The FCRA requires employers who conduct background checks to:
- Acquire your consent before conducting such a check
- Notify you if they decided not to hire you because of the background checks’ results
Besides the employer, firms that perform and provide background check services must ensure the information they gather is timely, complete, and accurate. If you dispute the information, they must investigate and report if any errors have been made.
Misdemeanor in Canada
Legislation and rules in Canada are not much different from the US. However, different provinces follow different procedures when it comes to employment and misdemeanors.
Canadian employers have the right to perform background checks on applicants, too. They may ask about criminal offenses for which you haven’t received any Record Suspension, which we’ll tackle later.
You may also undergo three kinds of records checks:
- Criminal records check – reveals convictions that have not been pardoned.
- Criminal record and judicial matters check – will show more information such as outstanding charges, peace bonds, probation orders, family court restraining orders, and court depositions.
- Vulnerable sector check – will include all information above and information about certain sexual and violent offenses, including those that have been pardoned.
Meanwhile, where they apply, these record checks should not include the following:
- Being stopped or questioned by police
- Being arrested but not charged
- Contacting police because of a mental health crisis
- Contacting police to report crimes
Pardon/Record Suspension allows people who have completed their sentence for a criminal offense to keep it separate from other criminal records.
In Ontario, an employer can refuse to hire you based on such criminal offenses if a Record Suspension hasn’t been granted. However, if you acquire Record Suspension, they must consider you as a viable candidate.
Meanwhile, in British Columbia, companies may discriminate or refuse to employ you if your criminal charge is related to the job at hand.
For instance, if you ask, “Will a misdemeanor DUI affect employment?”, the answer is yes if you’re applying as a driver — where the employer will likely deny your application. You’ll have better chances of getting employed even with this charge if you apply for an unrelated job to driving.
This is also the case for many provinces. Employers must look into whether the person’s offense would have a real impact on their ability to do the job or if they pose risks while doing it.
Three-Part Process of Employment Denial
Under the Criminal Records Act, if a company wants to deny you a job because of your criminal history, it must follow a standard process. The process is to prove that a clear criminal record is required for the job.
The three considerations are:
- There must be a connection between a clean record and the job.
- The requirement of a criminal records check must be necessary to fulfill a work-related purpose.
- The criminal records check must be reasonable and necessary to prevent undue difficulties on the employer.
The company must also provide verified information on your records, proving it exists and impacts your ability to perform your role.
This means you can request an explanation or further information on why you have been denied a job because of a criminal record. Such a request can make a difference if you believe you’re being unjustly discriminated against because of your record.
Misdemeanor in Australia
In Australia, the Australian Human Rights Commission implements laws that oversee how an employer can treat a person with misdemeanor records. Under Australian law, however, an employer can refuse to hire a person if the criminal record means they won’t be able to perform the “inherent requirements” of the job they’re applying for.
Legislations Against Employment Discrimination
International and domestic laws exist to prevent employment discrimination based on criminal background.
The ILO Convention 111, for instance, requires countries to “declare and pursue a national policy to promote…equal opportunity and treatment in respect of employment and occupation…”
Although the convention specifies race, color, sex, religion, nationality, and social origin as grounds of non-discrimination, the law leaves room for countries to add further grounds, such as criminal history.
On the federal level, employment discrimination is prevented by the Human Rights and Equal Opportunity Commission Act.
Meanwhile, on the state and territory level, only Tasmania and Northern Territory have laws that specifically forbid discrimination based on criminal records, namely:
- The Northern Territory Anti-Discrimination Act of 1992 – prohibits employers to discriminate on the basis of “irrelevant criminal records”
- Tasmanian Anti-Discrimination Act of 1998 – pursues the same legislation as above, although there is a specific exemption for discrimination related to the education, training, or care of children.
Relevant Criminal Records to Employment
With those laws in mind, the Australian Human Rights Commission has determined types of employments where people with criminal records will not be employed.
Also, professional and occupational licensing bodies have special guidance that addresses the person’s criminal records.
Still, regardless of the relevance and inherent requirements for the job as well as the person’s criminal records, the employer needs to assess the application on a case-by-case basis to avoid discrimination or accusations thereof.
As different countries, states, and provinces treat misdemeanors and employment laws differently, it’s crucial to learn about local laws and applicable regulations for your location.
Whether you’re moving or applying for a job outside of your home country, it’s always better to know where you stand and what risks you’re taking. Learn about the facts, and you’ll learn to navigate such laws and employment practices.
For more issues pertaining to charges, see our criminal law page
About The Author: Michael is an aspiring lawyer who likes to spend his free time researching different topics of law, especially about what is legal and what is not. He enjoys reading articles, watching documentaries, and attending lectures to become more informed about the law. He hopes that one day he will be able to use this knowledge to help people in need. Michael also has a passion for writing which led him to pursue journalism as his minor in college.
Through his studies, he has learned how to write professionally with clarity and precision. He is currently writing a novel about the life of a young lawyer who fights for justice in a world that is filled with corruption. Michael hopes to use his skills in writing and researching to pursue a career as an attorney one day. In addition, he also volunteers at legal aid clinics to gain more experience. From this volunteering experience, he has been able to help people better understand their rights and the legal system.
Michael is a dedicated individual with a passion for law and writing, and these qualities make him an excellent candidate for any legal field. He is eager to use his skillset to prove himself as a lawyer in order to contribute in making the world a better place.