Criminal Arrests 101

9/23/15
By some estimates, 21 percent of job applicants have some kind of criminal record.

This statistic highlights the importance of making sure you are running an accurate and thorough employee background check on all individuals you are considering adding to your team.  Remember, just about anyone can look good on paper.  (For more on resume fraud, click here.) 

Ban the Box legislation is passing left and right, but running a criminal background check on a person you have made a conditional job offer to is essential to the safety of your organization.  Criminal record checks will let you know about any convictions (or infractions) the individual has faced. The federal law, which is covered in most states, allows a review of the employee’s record for seven years. Having criminal history on the person you have made a conditional job offer to will then let you determine if this risk is worth the hire.   

-CRIMINAL ARRESTS-
Keep in mind that when running a check on arrest records, that’s exactly what you are going to find: an arrest record. These particular reports do not always follow up on whether the charges were dropped or if the applicant was actually CONVICTED of the crime in question; or even a lesser charge.  Remember, there is a huge difference between an arrest and a conviction.   Following up with the individual is crucial. As a hiring manager, you must understand the terms Pre-Adverse Action and Adverse Action.  If you do not, you should not be a hiring manager.  You are putting your organization at risk for a law suit.  Stop right now and educate yourself on those two important hiring steps.

Most employee background check reports will include a trace on the applicant’s social security number. The person’s driving record will also be reported, along with any local level felony or misdemeanor history. A search of the national criminal database is usually also included. The sex offender registry can be checked in all 50 states. More extensive searches include a look into nationwide databases such as the Federal Bureau of Investigation, Department of Corrections and State Police.

A criminal record that shows up on an employment background check does not automatically disqualify a candidate from consideration of employment. The Equal Employment Opportunity Commission (EEOC) states that a candidate cannot be disqualified from employment based on a criminal record alone. The hiring agency however,  can consider the nature of the offenses, the amount of time that has passed since the conviction or sentence, and the nature of the job being sought.  For tips and suggestions to add to your hiring practices, download MBI’s compliance checklist here.

Laws vary from state to state on what information from an arrest record can be used by an employer when considering someone for employment.

States that cannot look at arrest records; or are advised against it include the following:

  • Alaska
  • California
  • Colorado
  • Connecticut
  • Delaware
  • Hawaii
  • Louisiana
  • Massachusetts
  • Michigan
  • Minnesota
  • Montana
  • New Hampshire
  • New York
  • North Dakota
  • Ohio
  • Pennsylvania
  • Rhode Island
  • Virginia
  • West Virginia

It’s important to know (and abide by) the rules in the state you are hiring in. Partnering with an employee background check company that follows those laws and is compliant in the final Consumer Report is crucial.  Confirm that the screening company you use is not only accredited with The National Association of Professional Background Screeners,  but also has a compliance department.  This will ensure that your background check vendor follows the current legislation and rules pertaining to employee background check companies from their end.

Brian Chapman, CEO
MBI Worldwide Background Checks

“Good Screening is SMART Business”