As if the world of criminal court checks weren’t complicated enough, some states have passed legislation that prohibits companies like ours from reporting to our customers that a candidate had a felony charge reduced to a misdemeanor to which he pled guilty! That’s one of the most unreasonable restrictions on our ability to provide our customers with critically important information I’ve heard in a long time.
Suppose your workforce is a nice balance between male and female workers and you’re considering hiring another male who was originally charged and convicted three or four years ago of sexual battery, which in Indiana, at least, is a Class D felony. We can report that. But, if the charge of sexual battery was reduced to a Class A misdemeanor from a Class D felony, we can’t report it to you. Now, suppose you decide to hire this candidate, totally unaware of the Class A misdemeanor conviction for sexual battery, and he does the same thing to one of your employees or worse. What do you suppose the chances are that you’ll get sued for negligent hiring? Where’s your recourse? If you sue us for not disclosing the information we had, we’re stuck because Indiana law prohibits us from telling you about it!
The sad part is that 99 percent of the cases where the charge is reduced from a felony to a misdemeanor come about as the result of a brief conversation between the defense attorney and the prosecutor in the halls of the county courthouse! Here’s how it usually goes: The defense attorney says his client won’t plead guilty to the Class D felony charge of sexual battery BUT will plead guilty to the Class A misdemeanor charge for the same offense. Rather than go to trial over the Class D felony, with all the time, trouble, and expense to the taxpayers involved in a jury trial, the prosecutor will normally agree to let the defendant plead guilty to the lesser charge. It’s quicker, much less trouble, and much less expensive to taxpayers.
Normally, the reduced charge has nothing at all to do with new facts or new information about the charge, but everything to do with reducing the prosecutor’s case load and the expense of jury trials – especially if there’s any question in the prosecutor’s mind that a jury will find the defendant “not guilty.”
So, the courthouse conversation is usually the basis for most felony charges being reduced to misdemeanors and our inability to report any of it to our customers. The questions that I’m left with are, “How fair is that to employers?” And, “How can an employer insure a safe workplace if job seekers who should have been convicted of a felony but, for the inconvenience of the thing, pled guilty to a lesser charge that we can’t report?”