Arrest Record Employment

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Arrest Record Employment

The quick answer to this question is that the federal statute that governs the use of employment background checks, the Fair Credit Reporting Act (FCRA) allows employers to use arrest records when making hiring decisions. Applicants that require a fingerprint-based criminal history record check for employment purposes and need the results mailed back to the employer address must use form D”. (A Criminal Hit will result in the disclosure of convictions and pending data only) Therefore, under federal law, an arrest record standing alone may not be used to deny an employment opportunity.” In Pennsylvania, state law also says that employers may only consider convictions if they are relevant to an applicant's suitability for a given job. Some states have laws that prohibit employers from considering arrest records that did not lead to convictions when making employment decisions.

Avery explains that employers can still deny employment based on a subsequent background check, but they need to be mindful of state and federal employment law if they decide to do so. Under 2012 U.S. Equal Employment Opportunity Commission (EEOC) guidelines, and under similar rules adopted July 1 by the state's Department of Fair Employment and Housing, an employer can be found in violation of anti-discrimination law "if screening people based on criminal records is having disproportionate impact on people of color," she says. Ban-the-box: Oral or written inquiries about arrests to applicants for public or private employment prohibited as an unlawful employment practice; and (effective January 1, 2014) convictions until the first interview. Criminal record exclusion describes the situation when an employee or applicant is denied a job opportunity based on previous criminal history as outlined in a pre-employment screening of arrest or conviction records.

Employers who are required to exclude applicants with certain criminal convictions from employment due to federal and Illinois law; Applicants that require a fingerprint-based criminal history record check for employment purposes and need the results mailed back to the applicant's address must use form C”. (A Criminal Hit will result in the disclosure of convictions and pending data only) Further complicating matters are myriad anti-discrimination laws such as the Equal Employment Opportunity Commission (EEOC) guidance on this use of criminal records that cautions employers that they better have a good reason for denying employment based on an arrest.

Of course, when conducting employment-related background screening, employers also should be mindful of the various laws that relate to the use of criminal records. Agency guidelines for preemployment inquiries: South Dakota Division of Human Rights, "Preemployment Inquiry Guide" suggests that an employer shouldn't ask or check into arrests or convictions if they are not substantially related to the job. Many employers conduct pre-employment background checks to protect themselves against lawsuits for negligent hiring.

The same principle applies to the difference between arrest records and convictions as applied to employment decisions under EEOC guidance : The fact that an individual was arrested is not proof that he engaged in criminal conduct.” Therefore, an employer may not use an arrest record by itself as the reason to deny employment to an applicant or take adverse action against an employee. California's Ban the Box” law applies to private employers in the state with 5 or more employees.3 The law will prohibit employers from asking about a job applicant's criminal conviction history prior to making a conditional offer of employment.4. Most employers in all fields conduct background checks on job applicants before they offer candidates employment.

Several states' laws limit employers' use of arrest and conviction records to make employment decisions. The Reentry and Employment Project can help policymakers from all levels of government understand how policies can create prolonged obstacles to employment—from obtaining documentation to passing background checks—and how people who have criminal records can join the workforce without compromising public safety. The Criminal History Record Information Act forbids criminal convictions from being considered as part of the employment hiring decision process unless the criminal conviction relates to the job for which the employee applied.

The Fair Chance Employment Ordinance restricts how employers can use conviction and arrest records during the hiring process and course of employment within City limits. A report by the U.S. Bureau of Justice Statistics showed that of the 25.9 million fingerprint records processed by states and territories in 2016, 44 percent were used for criminal justice purposes and 14,623,300 were used and submitted for licensing, employment and regulatory purposes.” These fingerprint records may include juvenile records, which may be confidential, arrests without disposition” (with no charges or charges with no conviction), expunged or sealed records, or information that a person acquired due to misidentification or identity theft.

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