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Will an arrest record appear in my background investigation?
Criminal record research has become a standard practice for most employers. The public in general is unaware of how criminal record checks are really conducted and what can be reported during the recruiting process. Is it what you see on TV, someone at a computer terminal finds every single record of everything that has ever happened, or is someone going to the county courthouse to conduct a criminal record check?
Forty-two states have provisions to conduct a statewide criminal record research for employment purposes through the appropriate state agency. In the remaining states, county criminal record checks must be conducted, and only criminal records in the county that is searched will be developed. A record that occurred in the neighboring county will not be developed. In states where only county criminal research is available, the search is generally conducted in the counties where the candidate lived due to the time and cost involved in conducting a search in every county in the state.
Federal law allows background vendors to report convictions that have not been expunged without any time limit. A conviction from 1965 can be reported by a vendor under federal law. A number of states have enacted legislation that prohibits reporting a conviction if the date of the final disposition, completion of probation, parole or confinement in a correctional facility occurred more than seven years ago. Visit http://www.tabb.net/state-specific-requirements.html to see if your state imposed restrictions.
Federal law prohibits background vendors from reporting arrests that did not result in conviction if the arrest occurred more than seven years ago. It is permissible for a vendor to report any arrest, regardless of the outcome, including cases that were dismissed, found not guilty, or that resulted in a pretrial intervention program, deferred adjudication or conditional discharge if it occurred less than seven years ago. Several states including Arizona, California, Hawaii, Maine, Massachusetts, Michigan, Montana, New York, Pennsylvania, and Wisconsin prohibit vendors from reporting any arrest record that did not result in a conviction and employers from denying employment regardless of when the offense occurred.
A quick overview of the broad spectrum of publicly available criminal record research policies develops inconsistencies. The New Jersey and Pennsylvania State Police will not report an arrest that did not result in a conviction. The New York Office of Court Administration will release records of arrest that did not result in a conviction even though state law prohibits a vendor from reporting the result and prohibits an employer from using this information during the hiring process. Will a background vendor report an arrest that has was found in a search even though it is prohibited? It can happen.
Candidates should be aware that whether or not a prior arrest will be available to a potential employer could vary state-by-state. With this in mind, a candidate should assume that an arrest will be found and reported. You should contact the jurisdiction that handled an arrest and go through the expungement process. This is the only way to ensure that an arrest record will not be found by a background vendor and reported to and evaluated by an employer.
What is the value of an arrest record? Is that record an indication that the applicant was involved in criminal activity but “got away with it”? Prosecutors often engage in the practice of overcharging, that is, charging the party with an offense of a more serious nature than the actual offense, which can be misleading to a prospective employer. Arrests are often dismissed in a plea bargaining agreement to a reduced charge, while others are dismissed due to lack of evidence to pursue a conviction. Additionally false accusations against an applicant can occur.
If an employer views and ultimately denies employment based on an arrest, there is the question of fairness to the candidate, EEOC guidance, and potential litigation. Employers that utilize an arrest that did not result in a conviction do so at their peril.
The Equal Employment Opportunity Commission has issued the following guidance to help employers navigate this complex situation. “The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.”
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