Background Checks: Criminal Arrests Without Conviction

Licensing agencies and most employers use background checks as part of their hiring or licensing process. Background checks include extensive types of information. The information collected could include arrest records – even arrests that never led to conviction.

There are certainly instances where these records have been solicited through a background check and ultimately used to deny someone a job or trade license.

Definitions

An arrests record is a cumulative record of all instances in which a person has been arrested. There may not be a conviction.

A conviction record is a list of crimes for which person has been previously convicted. It is information indicating that a person has been convicted of any felony, misdemeanor or other offense, has been judged delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned or paroled by any law enforcement or military authority.

Use of Background Checks

While some states allow certain information to be considered, most have some restrictions on the use of arrests that never led to a conviction. States including California and Colorado forbid employers from inquiring about such arrests.

The Equal Employment Opportunity Commission (EEOC) also has restrictions on the use of arrests that never led to a conviction as they disparately affect minorities who are arrested at a much greater rate than their nonminority counterparts. Use of that information, unless directly related to the job, would disproportionately affect minority candidates.

Of course criminal background checks are required for certain law enforcement jobs, prison guard positions, public school employees, or daycare workers. Otherwise, however, use of criminal background checks should be, and many states must be, restricted to the job you are being considered for – the job and the record must be substantially related.

In California conviction records may be used especially if they are public record; however certain criminal records are not public and cannot be used by other than law enforcement agencies – these records may not be accessed for employer background checks.

Keep in mind that arrests that are pending conviction may be used in the qualifying criteria for an applicant.

Adversely Effected by a Background Check?

State laws, EEOC regulations, as well as others restricting use of many types of information are in place to protect prospective employees and licensees from being unfairly disqualified from the jobs they are seeking. While state laws may be even stricter, the EEOC requires employers to consider at least the following when looking at an applicant’s background:

  1. Whether the applicant is likely to have committed the alleged conduct;
  2. Consider the nature of the offense;
  3. Consider the amount of time that has passed since the conviction; and,
  4. Consider how the offense relates to the job.

If you feel you have been prevented from getting a position because of an arrest that never led to a conviction, but one that appears in your background check, contact an attorney who can advise you as to the law, how to proceed, and what your options are. Furthermore, if you are asked on an application about arrests regardless of conviction, you should also contact a lawyer for advice.

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