What Employers Needs to Know About Using Arrest Records in a Background Check

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Aug 13, 2015

Today, employers have a heightened concern about arrest records.

They want to know if they will show up on a background check, if it will be clear on the report that the record found is not a conviction and of course, what should they do when an arrest is reported.

When conducting a criminal background check it is important to know that most courts will provide arrest records in the same manner as they report convictions. It is then up to your background screening company to decipher the information that has been reported.

When it comes to arrest records there are a few designations to look for:

  • Pending case — This means that the person has been arrested charged with criminal activity, but that the case is still pending adjudication (trial, plea bargain, etc.)
  • Arrest/non-conviction — This means that the person was arrested but ultimately the charges were dismissed or the person was found not-guilty.
  • Arrest record/conviction — This shows that the person was arrested, prosecuted and was found or pled guilty to the offense.

Can you use the record?

The quick answer to this question is that the federal statute that governs the use of employment background checks, the Fair Credit Reporting Act (FCRA) allows employers to use arrest records when making hiring decisions. Employers can consider arrests that occurred within the last seven (7) years.

Now before you act on that information, consider that there are a few specific-state laws around the country that preclude this practice. For instance, if you are conducting background checks in California, you should know that arrest records cannot be considered.

Further complicating matters are myriad anti-discrimination laws such as the Equal Employment Opportunity Commission (EEOC) guidance on this use of criminal records that cautions employers that they better have a good reason for denying employment based on an arrest.

Should you use the record?

I know you want me to wave a magic wand and give you a straight-forward answer. Unfortunately, every company is different and has there own practices, policies and regulations. That, and our general counsel would tar and feather me if I dared opine on the subject.

While I can’t give you the answer to this question, I can provide some guidance on things to consider:

  • Pending cases — Unless specifically precluded from doing so (see the California example), pending cases should absolutely be considered. If the activity isn’t something that would concern you even if the person were convicted, then you have your answer. If a conviction for the pending charge would disqualify the person for employment, then make sure to follow proper adverse action procedures.
  • Does your organizations have specific regulations that mandate your consideration of arrest records? – Some industries such as the banking, financial services, airlines, etc. require you to consider arrest records before making a hiring decision.
  • Does the person have a pattern of arrests and, or convictions?

What your background screening provider should be doing

There are some things that your background screening company should do to help you in this regard.

First and foremost, they should honor your requirements when it comes to reporting arrest records. Some organizations want/need to see these records, while others don’t want to touch them with a 10-foot pole. They should be able to apply your criteria accordingly.

If you do not want arrest records reported, they should take steps to remove those records from the final report before completion.

If you do want arrest records, background screening companies should make it clear when reporting a record whether the record for a conviction or an arrest. They should also take steps to ensure you are not looking at the same case multiple times throughout the report. In other words, you don’t want a report that shows the arrest as one record and a resulting conviction as another record.

This was originally published on the EmployeeScreen IQ blog