Can You Consider Arrest Records?

Let’s consider arrest records for a moment.

Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. published by the Equal Employment Opportunity Commission is an excellent resource. Much of the information in this section comes from that source.

The report provided by your background screening company should include all convictions available (as discussed in a previous post). What about arrest records or charges? Generally, the Fair Credit Reporting Act allows the reporting of “any other adverse item of information…which antedates the report by more than seven years.” If the annual salary of the job will be $75,000 or more, any other adverse item of information can be reported, regardless of when it occurred.

A comprehensive background screening report should include arrest records if available. The report should clearly differentiate between records that are convictions (guilty, responsible, convicted) and records that are merely charges (dismissed, nolle prosequi, not prosecuted).

Suppose you have a candidate for a financial or fiduciary position. She has a Bachelor’s degree and 20 years of experience. Her interview went well, and you made a conditional offer of employment. During the interview, she disclosed that she had a misdemeanor conviction from about 20 years ago for a minor drug offense, but no other convictions.

Here are the results of the criminal record search portion of her report, with only convictions – not arrests/charges – included.

Criminal Records

Assuming that the rest of the information in her report was acceptable, would you hire her?
Let’s assume that you used a background screening company that included arrest records and charges as well as convictions in the criminal record section. That background screening company should have strict standards for confirming that arrests and charges match the candidate and are reportable. Here are the results of the criminal record search portion of her report, with convictions, arrest records, and charges included.

Criminal Records Including Arrest Records

Now what do you think? Would you like to have more information? Would you like to ask the candidate about these charges?

Guidance from the EEOC

According to guidance from the EEOC:

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.

As an employer, you shouldn’t deny employment simply because a candidate has been arrested, charged, or convicted without considering other factors. However, you may consider what led to the arrest and make a decision based on that information.

Although an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes.

Let’s assume that the drug paraphernalia case is not an issue for you based on the position to be filled and the age of the case. Would embezzlement or worthless check charges be relevant to the financial or fiduciary position for which you are hiring? The EEOC provides guidance on the factors to consider for convictions as well as arrests:

• Nature and gravity of the offense or conduct;
• Time that has passed since the offense or conduct and/or completion of the sentence; and
• Nature of the job held or sought.

Questions to Ask

What were the circumstances of the case? What led to the embezzlement charge? Were these bad checks accidental or deliberate? If accidental, this could indicate ineptitude or an inability to manage money. If deliberate, this could indicate fraud or dishonesty. How recent were the cases? Remember that arrests and charges are reportable for the past seven years, and convictions are reportable forever. Does the nature of the offense (embezzlement, bad checks) relate to the job position (accounting)?

The EEOC provides good guidance:

• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
  • Identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
    • Identify the criminal offenses based on all available evidence.
  • Determine the duration of exclusions for criminal conduct based on all available evidence.
    • Include an individualized assessment.
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultations and research considered in crafting the policy and procedures.
• Train managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with Title VII.
• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.

As always, you should work with corporate counsel with experience in employment law, especially since some laws differ in each state. Finally, how can you legally get the whole picture of the candidate?

Plan. Protect. Prosper.

Protus3 specializes in security system design, security consulting, corporate investigations and other investigative services. Partner with Protus3 and we will examine each situation to identify threats and develop solutions for your best outcome.

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