Companies are rightly concerned about potential red flags when they move candidates forward in the interview process. After all, arrest and conviction records may point to a problem that could arise at work. Some industries, such as working with children or financial sectors, must keep careful vigilance about particular kinds of criminal convictions. Other times, a pattern of convictions shows an unwillingness to play by the rules—which can be a bad quality, depending on your company culture.
On the other hand, arrest records can go from red flag to red herring if they aren't used carefully. Some arrest records are connected to cases that resolved without a conviction. Other arrest records are so old that there is no real connection between the person applying to your job now and the person who committed the indiscretion.
Finally, there are times when the criminal activity was so irrelevant to the task at hand, and the person has paid their debt to society through fines or incarceration. Due to a disproportionate number of African-American and Hispanic individuals under arrest compared to Caucasian individuals, a blanket ban on hiring people with arrest records can contribute to a lack of diversity in your company at best and actual legal discrimination at worst.
The answer to the question, "Will a background check show arrests?" is generally, "No." Arrests are not convictions in a court of law—which means they should never apply to your hiring process. Consider that arrests are not a judgment of guilt, but a suspicion of criminal activity which involves detaining the suspect. Until you have something definitive to work with, it’s best to stick with the background check staples!
Industry Regulations Matter
Not every crime is at all related to one's ability to perform a job. After all, running a red light doesn't connect to your ability to stock a grocery store overnight. There are, however, some crimes that are deeply tied to workplace misbehavior.
For instance, hiring someone convicted of embezzling from a prior employer would be a weak candidate for an accounting position at a new company, where he or she would have access and opportunity to repeat his or her crime. In some industries, there is a requirement to check for particular kinds of past convictions. In these cases, arrests only (ones that didn't end up yielding a conviction) aren't significant, but arrests leading to convictions are.
State Laws and Federal Laws Matter
Some states and federal laws take the stance that all arrest records that don't lead to convictions are off-limits. Most of these laws, including the Equal Employment Opportunity Commission (EEOC), were created to avoid unconscious or conscious discrimination, where an employer chooses to not hire someone due to a protected class but claims that the arrest record or conviction was the real reason. After all, people who have emerged from incarceration need work just like other individuals! Following these laws carefully—and understanding which ones apply in your state—is essential.
That being said, some states will have guidelines that tend to be a bit more lax, allowing you to use your judgment based on the situation and responsibility of the job. If everything else lines up with a particular job candidate, think before you request the background check: are there any convictions that would be pertinent to the job? A discerning third-party screening partner will provide them to you.
Here’s another thing to consider: you'll likely only receive conviction records within the past seven years, depending on your state of operation. Other than state laws that allow reporting beyond the seven-year cutoff, this gives candidates an opportunity to showcase their growth beyond past convictions with a strong track record of current successes.
The State of the Arrest Matters
While this may have convinced you that arrest records which don’t lead to a conviction may not be relevant, there is one case where you may want to reconsider: pending cases. An arrest for a situation that is currently pending is a big deal, since the issue in question occurred recently.
You may want to request that your background check company include any arrest records with pending cases since any conviction could happen early in the individual's employment at your company. If the conviction itself would be a red flag in your particular industry, it is best for this individual to reapply once they receive a "not guilty" verdict. However, how you choose to use any reports that contain pending cases should be discussed with your legal counsel.
There are many subtleties that require prudence and care when it comes to criminal background checks. Knowing more isn't always better—but knowing enough to perform your duties to your clients and customers is essential.
As a rule of thumb, we always advise HR managers to avoid the inclusion of non-conviction records when it comes to your hiring decisions. However, you should always seek out competent legal counsel in the event that you’re uncertain. When it comes to background screening, let CNet Technologies be your guide! Get in touch with us today to see how we can put our extensive resources—and knowledge—to work for you!