What Is the Difference Between a Misdemeanor and a Felony
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Employers conduct criminal history checks to identify candidates whose criminal pasts might affect their ability to perform in the vacant role in a safe, responsible, trustworthy, and effective fashion. In certain situations, a criminal conviction might stand out as a red flag that fundamentally shifts how a hiring manager thinks of their candidate. For example, if a candidate has been convicted of multiple violent felonies, the employer may hesitate to hire that person, knowing they may pose a risk to customers, clients, or fellow employees.
However, in the vast majority of cases, the criminal convictions from a person’s past that stand out the most as red flags or risk indicators are felonies. As a result, less severe violations of the law, including misdemeanors, end up being a point of confusion for employers and job seekers alike. Employers often wonder whether a misdemeanor offense can reasonably be grounds to disqualify an applicant from job consideration. Meanwhile, job seekers may be curious to know whether their minor crimes from years prior will be a significant obstacle to employment.
On this page, we explore the nexus of misdemeanors and background checks to help both employers and job seekers navigate the many complicated questions that can arise from that collision.
In the United States, common law recognizes two main classes of crimes: felonies and misdemeanors.
Felonies are more serious criminal convictions, while misdemeanors are less severe criminal offenses that violate state or federal law. Typically, the easiest way to draw a line between these two types of criminal activity is to consider the sentencing. In most felonies, a sentence of one year or more of prison time is authorized. The justification is that felony crimes – a category that includes murder, rape, burglary, kidnapping, arson, grand theft auto, fraud, embezzlement, and racketeering – are grave offenses that cause significant injury to victims. As a result, these crimes carry significantly heavier punishments than misdemeanor crimes. Note that felony convictions may sometimes result in sentences of less than a year in prison, depending on the judge’s discretion and limits set by statute.
Misdemeanors are the less severe form of criminal activity. A misdemeanor usually carries a maximum sentence of less than a year in prison. In most cases, prison time won’t even be a factor. Instead, most misdemeanors are punished with less severe sentences, such as fines, probation, or minimal jail time in county jails rather than state prison. Examples of misdemeanor crimes include petty theft, simple assault and battery, shoplifting, trespassing, disorderly conduct, and minor drug offenses. Typically, the legal system treats misdemeanors as serious violations of law, but not so serious that the perpetrator deserves to have their life severely upended by the punishment.
While felonies and misdemeanors are the two common law violations in the U.S., there is another type of legal violation that everyone should know about: the civil infraction. A civil infraction is technically not a criminal conviction and is therefore not a part of your criminal record. The most common example is a standard traffic ticket. If you’ve ever been fined for speeding or running a stop sign, you have technically been cited for violating the law. However, that violation of the law is not considered serious enough to be a misdemeanor. Unlike felonies and misdemeanors, infractions will not appear as part of a criminal background check report.
While the most notable way of describing a misdemeanor is as a crime less severe than a felony, that doesn’t mean that every misdemeanor is the same. On the contrary, misdemeanors – similar to felonies – are divided into different classifications depending on the severity of the crime.
Different states have diverse rules about how they break down their misdemeanor classifications. Some jurisdictions have a system where misdemeanors are divided into Class 1, Class 2, Class 3, or Class 4. Other states use a lettered system, where the classifications are Class A, Class B, Class C, and Class D. Ultimately, whether your jurisdiction uses numbers or letters doesn’t matter much. Class 1 and Class A misdemeanors are more serious than Class 2 or Class B, and so on.
In some jurisdictions, there may not be a numbered or lettered system. Those jurisdictions usually refer to more severe misdemeanor offenses as “gross misdemeanors.” Ultimately, this distinction is no different than a Class A or Class 1 misdemeanor. These distinctions mean more or less the same in that they denote the seriousness of the crime.
How do law enforcement in different jurisdictions judge the severity of a misdemeanor to determine its class or to decide whether it is a “gross misdemeanor”? Usually, there are several factors that authorities consider when assessing the severity of a misdemeanor. These variables include:
The extent of the damages. For misdemeanors like theft or shoplifting, the dollar value of the damages will be one of the crucial aspects that authorities and prosecutors consider when deciding the classification for the misdemeanor. In some cases, crimes with particularly high levels of damages –monetary or otherwise – may even be upgraded to felony status. For instance, petty larceny is a misdemeanor and refers to a relatively minor instance of theft, while grand larceny (a more severe crime of theft) is considered a felony. The core difference is the dollar value of the goods stolen.
Who the victim is. Assault and battery is often a misdemeanor. However, note that this crime can be treated as being more “severe” – and can even be bumped up to a felony – depending on who the victim is. Specifically, if the victim is a minor, an older adult, a mentally disabled person, or a law enforcement officer, authorities escalate the crime to a felony.
The behavior of the defendant. The defendant's conduct at the time of the crime can also impact the classification it meets as a misdemeanor and whether authorities consider upgrading the criminal charge to a felony. Again, a valid example is an assault. If the defendant merely throws a single punch, they are more likely to face a simple assault charge, which is a misdemeanor. If the defendant repeatedly hits the victim with evident intent to cause serious bodily injury – or if the defendant attacks with a weapon – law enforcement will likely categorize the assault differently. These more serious forms of violence are typically tagged as aggravated assault, which is a felony offense.
The presence of prior offenses. The last factor that may impact the classification of a misdemeanor is the defendant’s existing criminal record. One useful example to look at is DUIs and background checks. Specifically, will a DUI show on a criminal background check? Someone caught driving under the influence for the first time will usually be charged with a misdemeanor, provided their actions didn’t result in the injury or death of another. However, a defendant charged with their second or third instance of DUI will likely face felony charges. Similarly, other repeat offenses may result in prosecutors upgrading a charge from a lower-class misdemeanor to a Class A or Class B crime or even elevating the charge to felony status.
Employers should pay attention to misdemeanor classes on a background check, as higher-class misdemeanors are generally considered more reasonable grounds for adverse hiring decisions.
“Do traffic tickets show on criminal background checks?” This question is one of the most common refrains for American job seekers. In this section, we will explore the topic of traffic tickets and background checks.
In most cases, traffic violations fall under the civil infractions category rather than misdemeanors or felonies. If you’ve ever wondered why the speeding ticket you got for driving five miles per hour over the speed limit has never come up on a pre-employment criminal history search, it’s because that speeding ticket is classified as an infraction and is therefore not a part of your criminal record. An employer can still find this information if they conduct a driving history check on you, but those checks return a different set of information than criminal background checks.
However, that’s not to say every traffic violation is an infraction. The higher the severity of a driving offense, the more likely it is to elevate to the criminal activity level. Precisely how law enforcement treats different types of traffic violations can vary from state to state. However, driving offenses that may be considered misdemeanors or even felonies include DUIs, operating while intoxicated (OWI), reckless driving citations, hit and runs, drag racing, leaving the scene of an accident, driving with a suspended license, and failing to yield for an emergency vehicle.
One of the confusing aspects of driving history in the context of criminal history is that, in some situations, the same basic type of driving offense may be considered an infraction, a misdemeanor, or a felony, depending on a few different variables. A DUI or OWI, for instance, may be treated as an infraction or a misdemeanor on the first offense, depending on factors like the extent of the driver’s intoxication. Repeat DUI or OWI offenses are more likely to scale up to a misdemeanor (if not a felony). At the same time, DUIs or OWIs that result in the serious bodily injury or death of a victim are considered serious felonies.
Similarly, speeding tickets can run quite the range of classification depending on the extent and severity of the speeding. Speeding tickets are among the most common types of traffic violations. They also don’t typically come with particularly severe consequences. Driving a little over the speeding limit will usually net you no more than a speeding ticket and a manageable fine. But speeding can escalate into a misdemeanor or even a felony if the driver is going much faster than the posted speed limit if the driver is speeding while also committing an OWI or DUI, if the driver is engaging in road racing, or if the driver is attempting to flee a police officer. In each of these situations, a police officer may issue a ticket for a different offense – such as reckless driving – rather than merely citing the motorist for driving above the speed limit. These more severe infractions will typically show up on a criminal background check.
In most cases, a criminal background check will show pending criminal charges. If someone has been charged with a crime, whether a misdemeanor or a felony, that charge is technically a part of the criminal record. Therefore, if an employer runs a background search in the correct jurisdiction – such as in the county where the candidate is facing criminal charges – those charges will appear on the background check report.
Different employers will likely have different viewpoints about handling pending criminal charges on a background check report. On the one hand, employers do have a right to know whether one of their top applicants is currently being charged with a misdemeanor or a felony. Just like some types of convictions can be relevant to the job, a serious criminal charge may rightfully give a hiring manager pause about extending a job offer to a candidate.
On the other hand, criminal charges are not proof that a person has been convicted of a crime. The court may ultimately acquit a candidate currently facing criminal charges, or law enforcement will dismiss charges after a full investigation. As a result, employers making decisions solely based on criminal charges risk disqualifying good candidates prematurely.
The good news is that a background check report should outline the status of each charge. These details ensure that employers recognize the difference between a conviction and a pending charge. In most cases, employers will give less weight to charges than confirmed convictions.
Criminal history reports prepared by qualified background check providers are detailed documents containing information about candidates and their criminal records. Said another way, a criminal background check report is not merely a bulleted list of the crimes for which a person has been convicted. Instead, a background check report should include the following information about each criminal record:
Jurisdiction where the record is located
Degree of offense, for instance, a misdemeanor
If the crime is a misdemeanor, the criminal record report should include details about the class of conviction the defendant was given. If the candidate committed a traffic violation that rises above the level of civil infraction, that conviction should be listed among other (if any) criminal history information in that person’s background. And if the charge is pending, that distinction should be delineated in the background check report.
Do note that, at backgroundchecks.com, we do not provide arrest records as part of our criminal record reports. While some background check providers do include this information in the background report, the truth is that there is an ongoing debate in the background check world about whether employers should be allowed to consider arrests as a matter of the hiring process. Some states have laws that significantly restrict (if not outright prohibit) employers from using arrest records to make employment decisions.
The argument is that arrest records themselves are not proof that a person was, in fact, guilty of committing a crime. Furthermore, minorities that face disproportionate arrest rates are unfairly impacted by policies that allow employers to deny employment based on nothing more than an arrest.
At backgroundchecks.com, we have decided that excluding arrest records from our reports is an important step we can take to help our customers comply with all relevant background check laws. Most employers don’t realize fully that their state may have a ban on considering arrest records for employment purposes. By excluding this information from all our checks, we avoid the confusion of state-to-state variations in rules and keep our clients compliant with those laws where relevant.
Expungement is the process of removing a criminal conviction from the public record. This option is available to individual criminal offenders based on various criteria. The idea is to provide a pathway toward rehabilitation for people who have demonstrated exemplary behavior and whose criminal records remain a barrier to entry for everything from housing to employment.
One of the criteria that courts deliberate during an expungement application is the severity of the criminal conviction in question. The most severe crimes, including violent offenses or sex crimes, are typically not eligible for expungement. More minor offenses, however, including most misdemeanors, may very well be expunged.
There are other criteria that courts will consider beyond the straightforward content of the conviction. For instance, in weighing whether to grant expungement, a judge will usually look at the time that has elapsed since the conviction and the offender’s behavior in the intervening years. Convictions that occurred more recently or were followed by a string of repeat offenses are a less compelling argument for expungement than a person who has a single conviction from ten years ago and no criminal activity to speak of since.
In some instances, states have also activated automatic expungement processes to push the cause of criminal justice forward. One trend, for example, is that some states that have legalized recreational marijuana use have also activated procedures for automatically expunging old marijuana possession convictions. The argument in favor of clean slate laws is that, since these “crimes” would not be crimes under current law, they should be wiped from criminal records. These practices are known as “clean slate laws” and have generated considerable debate. Learn more about the debate over clean slate laws by reading our blog on the subject.
Wondering whether you can expunge your criminal record?
Use our expungement tool to find the answer.
With any type of criminal history, whether a misdemeanor or a felony, employers and job seekers should be aware of the implications of so-called “ban the box” legislation.
Ban the box is perhaps the most impactful trend to impact the background check industry in the past 20 years. Part of a broader “Fair Chance” hiring movement, ban the box is a type of legislation that requires employers to remove the “Have you ever been convicted of a crime?” question and tick box from their job applications. Proponents of this type of law argue that asking this type of yes-or-no criminal history question (“the box”) up front leads to employment discrimination against anyone with a criminal record, as it does not allow those individuals to showcase their skills or qualifications. Instead, by being forced to answer this question at the outset of the hiring process, candidates can lose ground in a hiring manager’s estimation before the interview process even starts.
Advocates for the ban-the-box policy say it helps provide a fairer and more reasonable chance for ex-offenders to compete for (and sometimes even win) jobs. In turn, ban the box can help reduce recidivism, as it provides better access to gainful employment for individuals previously convicted of criminal activity.
Ban the box laws vary considerably from place to place. Some are state laws, while others are ordinances or policies enforced by local governments. Some only apply to jobs in the public sector, while others extend to private employers. Some merely ban questions about criminal history on the job application. In contrast, others delay any criminal record inquiries (including, crucially, background checks) until after a conditional job offer has been made. Employers are advised to review the laws in the places where they do business (including their cities, counties, and states) and to consult their attorneys to ensure compliance.
One factor that isn’t variable across ban the box policies is the severity of the crime. These policies apply equally to misdemeanors and felonies. Someone who has been convicted of a serious violent crime has the same protection and opportunity under ban the box as someone with a Class 4 misdemeanor. This protection does not mean employers are obligated to hire people with criminal histories. On the contrary, an employer still has the right to conduct a background check (providing they do so in compliance with the timeline in the ban the box law) and can disqualify candidates based on relevant criminal history information. Ban the box simply means the employer must wait to make those criminal record inquiries, which proponents of the legislation argue gives ex-offenders more opportunity to prove their fitness for the job at hand.
Similarly, job seekers should know their rights under ban the box laws. Knowledge of any relevant ban the box legislation when applying for a position can help you navigate the job application process. If laws in your area prohibit employers from asking about criminal history information on the job application or in an interview, the employer cannot ask you to provide this information without violating a law. Again, these protections apply whether you have been convicted of a misdemeanor or a felony.
In general, misdemeanors are considered a less justifiable reason to disqualify a candidate from job consideration than felonies. Misdemeanors that are expressly relevant to the duties of the job at hand can and should still be weighed seriously. However, because misdemeanors are less serious than felonies – and because there is currently such a substantial push for criminal justice reform and giving ex-convicts a second chance – employers should tread carefully when thinking about retracting a job offer based on a misdemeanor offense. All the variables discussed on this page – including the class of the misdemeanor, whether the crime was driving-related, the possibility of expungement, and ban the box – should be considered as part of this process.
The idea of “passing” a background check is a bit of a fallacy, as each employer has different criteria for what type of criminal record should be grounds for job disqualification. A misdemeanor will show up on your criminal background check unless you have successfully petitioned to have that conviction expunged. However, employers are also more likely to take a chance on a candidate with a misdemeanor conviction than they are on someone who has been convicted of a felony.
Yes, misdemeanors and felonies are considered criminal activity and will appear as part of a criminal background check.
Yes. Disorderly conduct is usually charged as a misdemeanor, though it may be elevated to a felony, such as if a person falsely shouts “fire” in a crowded place. Misdemeanors and felonies both come up on criminal background checks.
Traffic violations are one of the most confusing parts of the background check equation for employers and job seekers alike. “Will my speeding ticket show up on a background check?” is a common question. Most traffic offenses, including the majority of typical moving violations, are classified as civil infractions and don’t come up on criminal background checks. However, there are cases where more severe traffic violations elevate beyond civil infractions and become misdemeanors or even felonies, such as repeat DUI offenses. Employers can also run driving history checks, which will show civil infractions and other details of the candidate’s driving record. Note that these checks are typically only used when the employer is filling a job involving driving.
There is no easy one-size-fits-all answer to this question. Often, employers are willing to take a chance on candidates with a misdemeanor conviction, especially if the conviction in question is not specifically relevant to the job at hand. In some cases, a misdemeanor may still be a barrier to employment – such as a shoplifting conviction for a job seeker trying to get a job in retail.
There are several reasons why a criminal conviction might not appear on your background check report. If you have successfully petitioned to have the conviction expunged from your record, it should no longer appear on any criminal background check. Alternatively, if the background check explores a specific geography different from where you were tried and convicted of a crime, those checks won’t show the conviction in question.
Expungement is, by definition, the total erasure of a criminal conviction, which means an expunged crime shouldn’t show up on any background check – including an FBI check. However, a sealed record may be a different story. Sealed records are no longer part of the public record and are therefore not accessible or reportable for the average background check provider. However, law enforcement agencies, including the FBI, can still access and utilize sealed records.
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