Will a Background Check Reveal an Arrest With No Conviction?

By Rebecca Mazin - Updated September 26, 2017

Employers use criminal background checks for a variety of reasons. They may be required for certain positions, such as jobs within a school, or companies may want to make certain they don't hire someone who is inappropriate for a job. If an individual is employed with a criminal background and they cause harm to someone, this could be considered negligent hiring. Here's one clear example; you would not hire someone recently released from prison after a conviction for vehicular manslaughter to drive a taxi.

Where is criminal background information kept?

Criminal records are kept by each jurisdiction. The National Crime Information Center maintains a computerized index of criminal justice information that is available only to federal, state and local law enforcement and criminal justice agencies. Background check companies must contact the locations where records are kept. If an individual lives in Iowa and committed a crime in Montana, their criminal record from Iowa courts will not reflect the infraction from another state. When employers request background checks, they should indicate the locations to be checked. This will include where the individual has worked or, if appropriate, adjacent states. The background check company should help make this decision.

Background Checks Reveal Arrest Records

Background check providers typically produce reports that contain all court records, including arrests. This can be a lengthy list, with no convictions. It is not appropriate to make an employment decision based on arrest records, only on convictions. Employers may think that an individual is a trouble maker if they have been arrested 12 times for burglary, even if they were not convicted of any crimes. The person may have never stolen anything.

Arrest Records and Employment Decisions

The Equal Employment Opportunity Commission, or EEOC, the federal agency that enforces U.S. employment discrimination laws, states that arrest records cannot be used as the basis for an employment decision because arrests have a disparate impact on minority groups. Simply put, more African-Americans and Hispanics are arrested than other races. A series of arrests, though, should trigger a much-closer look at the applicant. For example, an individual applying to drive a bus has an arrest, but not a conviction, for driving under the influence. An investigation of the arrest may find that a procedural issue led to the lack of a conviction and multiple witnesses testified that the individual staggered from the car and smelled of alcohol.

Storing Arrest Records

When background checks reveal arrest records, they should never be placed in an individual's personnel file or attached to an application for employment. In fact, all results of a criminal background check should be kept out of employment files. Store these separately in a secure location or verify that the company that conducted the search retains a copy. Never toss criminal background checks in the trash. Records of this type should be destroyed by shredding or pulverizing.

Keep Arrest Records Out of General Conversation

Conversations about arrest records should be between only a hiring manager and person assisting with the decision and evaluating the information. Never include information, even informally, about arrest records in e-mail messages about candidates.

About the Author

With over 20 years of expertise, Rebecca Mazin co-founded Recruit Right to create usable solutions for employers to meet complicated HR challenges. Before Recruit Right, Mazin held key positions at Hyatt Hotels, Owens Corning and the NLRB. Mazin coauthored The HR Answer Book, AMACOM, 2004 and is currently writing The Employee Benefits Answer Book to be published by Pfeiffer.

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