Monday, June 2, 2014

Why Checking an Applicant’s Criminal Past Should be About Convictions, Not Arrests!

Imagine being denied employment simply because of an accusation? That is what it is like for people who lose jobs solely based on a record of arrest.

In reality, many arrest records, especially those contained in online databases, do not indicate what happened after the initial arrest. They may not show if formal charges were ever filed or, if filed, were they eventually dismissed. An arrest does not prove that criminal activity has even occurred. Without a conviction, it is still only an accusation.

What is an employer to do? You want to know if your applicant has a criminal history so you can make a safe hire, but you also want the information you find to be complete and factual. 

The best place to start is by first understanding what actually constitutes a criminal record.

There are 4 Different Types of Criminal Records:
  • Arrest Records ~ Law Enforcement Records of Arrests.
  • Criminal Court Records ~ Local,  County, State or Federal court records.
  • Corrections Records ~ Prison Records.
  • State Criminal Repository Records ~ Statewide records consisting of arrest records, criminal court records, and correction records.
When a person is arrested, the arresting agency makes a report of that arrest (the Arrest Record). The defendant will appear before a judge or magistrate. The case will result in either a conviction or dismissal of the charges (the Criminal Court Record).  

If a conviction occurs, the sentence varies. The defendant could simply have to pay fines and/or court costs, perform community service, enroll in a  treatment program, placed on probation, or a combination.

Depending on the crime, the defendant may also be incarcerated. If it is a lower level offense (misdemeanor), they may be sentenced to a local or county jail. For a felony conviction, they may go to jail or prison. In most cases only those convicted of the most serious or violent offenses are sent to prison. Records are kept on their term of imprisonment (Corrections Records). 

Arrest records, criminal court records, and correction records are all to be sent to the state repository (State Criminal Repository Records).

An Arrest alone should not keep you from getting the Job! "Tweet This"

The EEOC (Equal Employment Opportunity Commission) differentiates between arrests and convictions.  
An arrest alone simply does not prove criminal conduct. It is important to keep in mind that excluding someone based on an arrest record that is not job related or necessary based on your business can be seen as a Civil Rights violation.

However, an employer may make an employment decision based upon the conduct underlying the arrest. The key is to substantiate the facts of the arrest and determine if the conduct that occurred renders an individual unfit for the position. In this instance, the conduct, not the arrest, is what is relevant.

In contrast, a conviction is a better indicator that a person engaged in illegal activity

And even when it comes to those convictions, not all crimes should be considered equal. As we have explained in previous blog articles, the EEOC has issued numerous guidelines on how those criminal records can fairly be used and the importance of fitting the background check to the job (see them here and here).

To be safe, employers should only consider convictions, not arrests when making their hiring decision. When you have evidence of a conviction (especially those verified through a quality background check company), you know the record is that of the applicant and you know the outcome of the case.

Only then can you make a truly fair and informed determination of the applicant’s suitability for the job. 

The bottom line ~ arrest records should not be used as the basis for an adverse employment decisionThe truth is arrest records do not paint a clear picture of an applicant’s criminal history. 
Remember the old adage: Innocent until Proven Guilty!

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