Do Arrests Show up on a Background Check? 22 Feb 2019

With over 73 million Americans having a criminal background (that’s about 1 in every 3 adults), it’s not if you will run into a criminal past, but when. Background checks are an important tool for eliminating any surprises that might pop up with candidates and for ensuring you have all the necessary information when coming to a hiring decision.

More and more businesses are incorporating background checks into their hiring process. Hiring managers need to know how to interpret the information that might come up during one of these checks. They may wonder, “Will I know if this person has a criminal history?” The short answer is yes. But what does it really mean, and how should that information affect your hiring decision?

What Might Show up on a Background Check and What Does it Mean?

Arrest records are frequently delivered in the same format as reported convictions, however, should you judge an arrest the same as a conviction? It’s important to know that arrest records do not indicate proof of criminal conduct. Arrest records can show up in three ways: as a pending case, an arrest/non-conviction, or an arrest record/conviction. Here’s how you distinguish between the three when reviewing a background check:

1. Pending case – This means that the individual has been arrested, criminally charged, and their
case is in process.
2. Arrest/Non-Conviction – The individual was arrested and accused of a crime, but the charges were either dropped or the individual was found not guilty.
3. Arrest Record/Conviction – This indicates that the individual was arrested, brought to trial, and either pled guilty or was found guilty of the charge.

What Are Your Rights?

When making a hiring decision, the Fair Credit Reporting Act (FCRA) grants you the ability to weigh arrest records from the last 7 years. However, there are various states that prohibit arrest records from being reported or considered for employment purposes. It’s important to understand the nuances of your state to avoid legal complications.

Also, just because someone has a criminal record it doesn’t automatically disqualify them from a position. The Equal Employment Opportunity Commission (EEOC) acts as applicant and employee protection by ensuring that employers won’t use the background check information in a way that denies equal opportunity for a position.

How Much Should an Arrest Record Influence Your Hiring Decision?

Resumes, applications, and interviews are all in place to mitigate the risk a business takes on. Background checks go a step further on reporting potential criminal risks associated with an applicant. Determining whether an applicant is disqualified for a position can be challenging. Asking yourself these questions can guide you in your decision-making process:

1. If pending charges were reported, would they concern you or affect employment if they were to be convicted? If the answer is no, then those with pending charges may not affect your decision making.
2. Does your company have specific guidelines or a code of conduct in place for how to approach and handle arrest records? If you are in the financial, banking, or airline industry, you may have legal requirements surrounding arrest records and the qualification of a candidate.
3. Does the record appear to be a one-time occurrence for the candidate, or do they have a noteworthy history of arrests and convictions? If a candidate has multiple arrests and/or convictions on their record, this could indicate a pattern of behavior.

What Is Your Responsibility?

As the business performing the background check, it’s your responsibility to come to a fair hiring decision. To do this you have to decipher whether or not the applicant was convicted, if the charges were dropped, or if the case is still pending.

Pending charges should be considered if they come back on a background check. If the individual has a pending charge, should they be convicted, would it eliminate their candidacy for your position? If so, then that arrest certainly should be taken into consideration and may ultimately disqualify them for that position.

Many businesses, however, have varying policies and practices. This can make determining how much an arrest record should influence your hiring decision complicated. With one-third of all adults in the United States having a criminal record, it can be advantageous to use background check results in your decision to hire or promote an applicant.

If you have any questions about running comprehensive employee screenings and best practices, contact our specialists at Trusted Employees for support.